Suing Trespassers on Your Property: Civil vs. Criminal Trespass

Trespass occurs when someone enters or remains on private property without authorization. Depending on the circumstances, trespassing may lead to criminal charges, civil liability, or both. Criminal cases are handled by prosecutors and can result in fines or jail time. Civil trespass claims are brought by property owners seeking financial compensation or court orders to stop unlawful activity on their property.

If someone has entered your property without permission or caused damage to your land, consider speaking with a personal injury attorney about your legal rights.

What Is Trespass?

Trespass is when someone enters another person’s property without permission. Each state has its own laws that govern what qualifies as trespass. Generally, intentional entry is enough to qualify as trespass.

There doesn’t need to be any harmful or criminal intent on the part of the trespasser. While trespassing can be the individual physically entering the property, it can also include an object or substance entering the property. Trespass also includes someone remaining on the property after their permission is revoked.

There are different types of trespass. The most well-known type is trespass to land, when someone enters another’s real estate. Another type of trespass is to personal property. This is when someone interferes with another’s belongings, such as a tangible or movable item.

Civil Trespass vs. Criminal Trespass

Trespass is a civil and criminal matter. A civil matter involves two private citizens in a lawsuit. It is considered an intentional tort, in which the plaintiff claims the defendant caused them harm and seeks compensation for those damages. The property owner files the personal injury lawsuit. Typically, these civil cases require the plaintiff to prove their claim by “preponderance of the evidence”.

A criminal trespass is a crime. It typically begins when an individual alerts law enforcement to a trespasser on their property. A police officer responds to the complaint. If appropriate, the officer arrests the trespasser, which initiates criminal trespass charges. The state or local government’s prosecutor then pursues the criminal case against the arrested defendant. If found guilty, criminal penalties could include fines, probation, community service, or even jail time. The incident remains on their criminal record.

For trespass to be considered criminal, it typically involves a refusal to leave after law enforcement instructs them to. Another common example would be breaking into a secured property or actively ignoring “no trespassing” signage. To secure a trespass conviction, the prosecutor would need evidence to prove “beyond a reasonable doubt”.

The conduct from a single incident can lead to separate civil and criminal cases. The two trespass cases are tried in different courts. The trespasser would need legal representation for each case. Typically, a lawyer focuses on a specific area of law. So they would hire a criminal defense attorney and a personal injury defense lawyer for the civil case.

When Can You Sue Someone for Trespassing?

Not every trespass dispute involves dramatic property damage or intentional misconduct. In many cases, civil trespass claims begin with routine property conflicts that escalate when the problem is not corrected.

Situations that frequently lead to lawsuits include:

• Boundary and encroachment disputes between neighbors
• Unauthorized recreational use of private property
• Construction activity crossing onto adjoining land
• Persistent trespassing despite warnings or revoked permission
• Dumping debris, chemicals, or pollutants onto another person’s property
• Conflicts involving easements, utility access, or rights of way
• Refusal to leave private property after consent is withdrawn

Some trespass claims involve only a brief intrusion. Others involve continuing trespass, where the conduct repeatedly interferes with the owner’s ability to use or control the property. For example, recurring flooding caused by a neighboring property or an improperly placed structure may create an ongoing violation rather than a single isolated incident.

Continuing trespass claims are often more legally complex because they may impact the amount of recoverable damages, the availability of injunctive relief, and the timeline for filing a lawsuit under state statutes of limitation.

What Must You Prove in a Civil Trespass Lawsuit?

To have a successful legal action, a landowner would need to prove the elements listed in their state’s civil trespass statute. While the law can vary, there are some common requirements.

The first is the proof of ownership. To have a claim, the property owner must be able to show ownership, a leasehold interest, or lawful possession. Next, there must be an unauthorized entry.

Trespassing also must typically be an intentional act. However, states don’t typically require the trespasser to have intended the property or the property owner harm. The final element is a lack of permission, consent, or legal right. This could be the trespasser never having permission or staying after permission ended.

Do You Need Actual Damage To Sue for Trespass?

Many states do not require the property owner to suffer damage, injury, or loss to sue for trespass. In these situations, the property owner would sue for nominal damages. The legal injury is the violation of the owner’s property rights.

In some situations, the property owner did suffer harm. In these cases, they would seek actual damages, meaning real financial compensation. States may define the type and amount of actual damages that can be sought. Common examples include property damage, cleanup costs, repair expenses, lost use, and diminished value.

If the action is especially egregious, some states allow the court to award punitive damages. These are damages designed to punish the defendant rather than make the property owner whole. To recover these damages, the trespass must involve malicious, reckless, or repeated misconduct.

Other Remedies Besides Money Damages

It’s common for a property owner to want a solution that is separate from money. An injunction can provide relief. A court will issue an order that directs the trespasser to stop entering the property. If the court order is ignored, the property owner can seek additional relief.

If the trespassing is a physical item, the court orders its removal. This is typically done when the trespass includes a structure, a fence, equipment, or debris.

A trespass claim between neighbors often includes a request for declaratory relief. The parties cannot agree on a property boundary line, which has led to the trespass claims. As part of the lawsuit, the court will issue a declaratory judgment clarifying and defining the property boundary lines.

Common Defenses to Trespass Claims

Common defenses are raised when someone files a trespass claim. The most common is consent, which claims that the property owner gave permission for entry onto the property. Another common defense is necessity, in which the trespasser admits committing the act but claims it was justified by the circumstances.

Another less common defense is to claim there was no trespass because the trespasser had a legal right to access the property. This type of claim is typically used when there is a boundary dispute among neighbors. An easement gives someone else the right to access and use another person’s property. Examples of easements include a utility easement for services such as electricity and water, or a driveway shared by two houses.

A trespasser could also claim they didn’t know they were trespassing. This could happen when a neighbor accesses property they believe is their own. This type of defense may clarify the mistake, but it doesn’t eliminate potential liability.

What If a Trespasser Gets Injured on Your Property?

Generally, property owners have a duty to maintain safe conditions on their property for guests who come onto it. However, this duty changes because a trespasser isn’t a guest. Most states limit a property owner’s duty.

However, there are exceptions to this. If the property owner is aware of, or should anticipate, trespassers, they have an increased duty. Additionally, if there is a dangerous artificial condition on the property, this qualifies as an increased duty. An attractive nuisance is a situation, like a backyard pool, that is particularly likely to attract children onto the property.

Seek Legal Advice

Property owners have the right to control who enters their land and how their property is used. While criminal trespass laws allow the government to punish unlawful conduct, civil trespass claims give property owners a way to seek compensation and court orders to stop the behavior.

An attorney can help determine whether you may have grounds for a civil lawsuit, what damages may be available, and whether additional legal remedies, such as an injunction, make sense in your situation.

If you believe someone has trespassed on your property or caused damage to your land, use the Super Lawyers directory to connect with a qualified personal injury attorney.