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Trespassing Law

Background

Trespassing is a legal term that can refer to a wide variety of offenses against a person or against property. Trespassing as it relates to real estate law means entering onto land without consent of the landowner. There are both criminal and civil TRESPASS laws. Criminal trespass law is enforced by police, sheriffs, or park rangers. Civil trespass requires that the landowner initiate a private enforcement action in court to collect any damages for which the trespasser may be responsible, regardless of whether a crime has been committed. Traditionally, for either type of trespass, some level of intent is required. Thus, the trespasser must not simply unwittingly traverse another’s land but must knowingly go onto the property without permission. Knowledge may be inferred when the owner tells the trespasser not to go on the land, when the land is fenced, or when a “no trespassing” sign in posted. A trespasser would probably not be prosecuted if the land was open, the trespasser’s conduct did not substantially interfere with the owner’s use of the property, and the trespasser left immediately on request.

Express Consent

The landowner may indicate, verbally or in writing, permission to enter onto the land.

Implied Consent

The existence of consent may be implied from the landowner’s conduct, from custom, or from the circumstances. Consent may be implied if these factors exist: the landowner was unavailable to give consent and immediate action is necessary to save a life or prevent a serious injury. Additionally, some states may extend this protection to animals.

Hunting

A hunting license is not a license to trespass, but state laws treat hunters differently when it comes to trespassing. Some states have laws that specifically address trespassing while hunting, and others rely simply on the general trespassing statutes of the state. In about half of the states posting is not required to prevent trespassing; that is, it is against the law for hunters to trespass on private property without the landowner’s permission even if the land is not posted. Where posting is required, some states have laws specifying how to post land. In some states, trespass while in possession of a firearm is a FELONY punishable by IMPRISONMENT for up to five years and/or a fine up to $5,000. A few states have laws that address hunters trespassing to retrieve dogs or wounded animals. In most states, however, hunters may not retrieve dogs or wounded animals if they cannot legally hunt on that land.

Adverse Possession

Sometimes a trespasser continues trespassing for such a long time, the law permits the trespasser to have the right to stay on the land. This right ranges from the right to live on the land to the right to pass across it to get somewhere else. If the piece of property in dispute has been used by someone other than the owner for a number of years, the doctrine of adverse possession may apply. State laws vary with respect to time requirements; however, typically, the possession by the non-owner needs to be open, notorious, and under a claim of right. In some states, the non-owner must also pay the property taxes on the occupied land. A permissive use of property eliminates the ability to claim adverse possession. One common form of trespassing is when a neighbor’s driveway or fence encroaches onto someone else’s land. Sometimes the owner will not want to make an issue of the encroachment—either because it seems to be a minor problem or because the neighbor is a friend. To avoid problems later, however, the owner should give the “trespasser” written permission to keep the ENCROACHMENT for as long as the owner continues to authorize it. If properly handled, this document will prevent the trespasser from acquiring a right to continue the encroachment and from passing along this right to future owners.

Trespass By Animals

In the old courts of England, the owner of livestock was held strictly liable for any damages to person or property done by the livestock straying onto the property of another. The mere fact that animals strayed and damaged crops, other livestock, or PERSONAL PROPERTY was sufficient to hold the owner liable for the injuries inflicted by cattle, sheep, goats, and horses. This strict liability position made sense in the confines of a small island such as England, but in the United States with herds of livestock wandering over vast expanses of land, a different process developed. The legislatures enacted statutes which provided that livestock were free to wander and that the owner was not responsible for damage inflicted by those livestock unless they entered land enclosed by a legal fence. These became known as open range laws. Subsequently, certain states reversed the open range laws and required the owners of livestock to fence in their livestock. This position was similar to the COMMON LAW position, only instead of strict liability, the livestock owner could be held liable only upon a showing that the livestock escaped due to the owner’s NEGLIGENCE.

State Laws

All city, county, and state law enforcement officers are authorized to enforce the hunter trespass laws. In 40 states, wildlife officers from the state’s wildlife management agency are also authorized to enforce the trespassing laws. In 22 states posting is not required which means it is against the law for hunters to trespass on private property without the landowner’s permission even if the land is not posted. Where posting is required some states have laws specifying how to post land. Only a few states have statutes that specifically address hunters trespassing to retrieve dogs or wounded animals. In all other states hunters may not retrieve dogs or wounded animals if the hunter cannot legally hunt on that land.

OKLAHOMA: Signs are required at all entrances and all corners and at 200 yard intervals along property lines.


*This site is not intended for, nor was it created to provide any type of legal advice. If you have any questions about the law, contact an attorney.