Delaware: Fast Facts on Trespassing
- Trespass Law Covers: Buildings, dwellings, land.
- Crime Class: Misdemeanor
- Fencing Required?: Yes.
- Signage Required?: No.
- Verbal Notice Required?: No.
Delaware Trespassing Law Overview
Delaware is a state with fairly straightforward laws on trespassing, and just a couple of exceptions.
They make room in a special statute for trespassing with the purposes of peeping or peering into someone’s house, AKA being a Peeping Tom, and also reserve the harshest penalty schedule for those who trespass into buildings or onto premises reserved for the housing and rearing of animals.
Aside from those two minor deviations, you will find Delaware’s trespass laws short, easy to follow, and lacking in any murky language or hidden meanings which is definitely to the state’s credit. We will list and discuss all of the relevant passages in the state statutes below.
Relevant Delaware State Statutes
- Title 11 Section 820
- Title 11 Section 821
- Title 11 Section 822
- Title 11 Section 823
- Title 11 Section 829
We will begin at the very beginning with the definitions. Every state should provide their own definitions for the language used in their laws contained within the statutes.
It is vital that you, as a well-informed citizen, read and understand those definitions so that you may gain a full and clear understanding of what the statutes actually say.
You might be surprised to find hidden or double meanings contained within otherwise easy-to-understand words that can change entire passages, even entire sections of the law.
Delaware’s definitions are actually at the end of the section that covers trespassing laws, section 829:
Section 829 Definitions relating to criminal trespass, burglary and home invasion.
(a) “Burglar’s tool or instruments” includes the term “bump key” which is a type of key used for a specific lock picking technique called lock bumping.
(b) “Dwelling” means a building which is usually occupied by a person lodging therein at night including a building that has been adapted or is customarily used for overnight accommodation.
(c) “Occupied dwelling” means a dwelling, and a person is lawfully present on the property at the time of the offense.
(d) A person “enters” upon premises when the person introduces any body part or any part of any instrument, by whatever means, into or upon the premises.
(e) A person “enters or remains unlawfully” in or upon premises when the person is not licensed or privileged to do so. A person who, regardless of intent, enters or remains upon premises which appear at the time to be open to the public does so with license and privilege unless the person defies a lawful order not to enter or remain, personally communicated by the owner of the premises or another authorized person. A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public.
(f) The “intent to commit a crime therein” may be formed prior to the unlawful entry, be concurrent with the unlawful entry or such intent may be formed after the entry while the person remains unlawfully.
(g) “Night” means a period between 30 minutes after sunset and 30 minutes before sunrise.
(h) “Premises” include the term “building” as defined in § 222 of this title, and any real property.
(i) “Security device” includes any lock, whether mechanical or electronic; or any warning device designed to alert a person or the general public of a possible attempt to gain unlawful entry into or upon premises or a possible attempt to unlock, bypass or otherwise disable a lock.
(j) A person possesses burglar tools or instruments facilitating theft “under circumstances evincing an intent to use or knowledge that some other person intends to use” such when the person possesses the tools or instruments at a time and a place proximate to the commission or attempt to commit a trespass, burglary, home invasion, or theft-related offense or otherwise under circumstances not manifestly appropriate for what lawful uses the tools or instruments may have.
According to the above statute, a dwelling is any building which is intended to be occupied at night by people. A dwelling is occupied when any person is lawfully inside it at the time an offense occurs against it.
Delaware makes it clear that entering or remaining upon a premise unlawfully entails any given part of their body in or on the premises in question. The trespasser does not have to bodily enter it entirely in order to trespass.
Of importance, premises is defined as any building and also any real property; that means land, even unimproved land, is included in the definition.
Premises also includes any definitions found in Section 222 elsewhere in the state statutes, but since they are unrelated to trespassing in particular I will omit them.
Delaware is another state which also defines night as the period beginning 30 minutes after sunset and ending 30 minutes before sunrise, independent of any particular time shown on the clock.
Moving swiftly along we will look at the section which covers trespassing with intent to peer or peep into the window or door of another. Quite a mouthful for a section of law which codifies that being a Peeping Tom is illegal, and what the penalty is for doing so:
Section 820 Trespassing with intent to peer or peep into a window or door of another.
A person is guilty of trespassing with intent to peer or peep into a window or door of another when the person knowingly enters upon the occupied property or premises of another utilized as a dwelling, with intent to peer or peep into the window or door of such property or premises and who, while on such property or premises, otherwise acts in a manner commonly referred to as “Peeping Tom.” Any person violating this section may be referred by the court to the Delaware Psychiatric Center for examination and for treatment. Justices of the peace shall have concurrent jurisdiction of violations of this section.
Trespassing with intent to peer or peep into a window or door of another is a class B misdemeanor.
So, this is somewhat icky to talk about, but there are no two ways about. If someone trespasses in any building or on any premises knowingly with the intent of peering into a window or door to spy on the people within, acting as a classic Peeping Tom or voyeur, this is a Class B misdemeanor and will furthermore see that person referred the Delaware Psychiatric Center for evaluation and potentially for treatment.
I don’t know why Delaware saw fit to include an entire section of the statutes just for the addressing of Peeping Toms, and I don’t think I want to know, but I’m glad that those laws are on the books.
Moving on to more respectable forms of trespassing we come to Section 821 which covers criminal trespassing in the third degree. This category of trespassing is notable for not being a misdemeanor, merely a violation. Details below:
Section 821 Criminal trespass in the third degree.
A person is guilty of criminal trespass in the third degree when the person knowingly enters or remains unlawfully upon real property.
Criminal trespass in the third degree is a violation.
That is a blink-and-you’ll-miss-it statute, as many of them are in the state of Delaware covering trespassing. If someone trespasses upon any property knowingly absent any other prohibitions they’re committing criminal trespass in the third degree.
The next section, 822, covers criminal trespass in the second degree, an unclassified misdemeanor and is equally as short as the previous section:
Section 822 Criminal trespass in the second degree.
A person is guilty of criminal trespass in the second degree when the person knowingly enters or remains unlawfully in a building or upon real property which is fenced or otherwise enclosed in a manner manifestly designed to exclude intruders.
Criminal trespass in the second degree is an unclassified misdemeanor.
Again, short and sweet and not many differences from criminal trespass in the third degree except one important factor: If someone knowingly trespasses on any property which is fenced or otherwise enclosed, say with a wall or something similar that is designed to keep out intruders and unauthorized personnel, they are now guilty of trespass in the second degree.
The presence of the obstruction designed to keep out accidental or casual trespassers is the factor that graduates simple trespassing to a proper misdemeanor.
The next section covers Delaware’s highest grade of trespassing, which is criminal trespass in the first degree.
It is a very specific kind of trespassing, but also a Class A misdemeanor, which can get you a significant fine and a lengthy stay in jail. Section 823 has the details:
Section 823 Criminal trespass in the first degree.
A person is guilty of criminal trespass in the first degree when the person knowingly enters or remains unlawfully in a dwelling or building used to shelter, house, milk, raise, feed, breed, study or exhibit animals.
Criminal trespass in the first degree is a class A misdemeanor.
Short and a little odd, seemingly. Apparently the only way to commit trespassing in the first degree in the state of Delaware is to trespass specifically in a dwelling or building used for the sheltering, raising, etc. of animals.
So a farm structure like a barn or something similar that is designed to house animals are some obvious buildings where this will be applicable, as is something like a zoo structure or dormitory.
As I mentioned above, laugh about it all you want but doing so will get you a serious misdemeanor charge.
How to Obtain a Trespassing Order in Delaware
You can get a trespassing order in Delaware by verbally notifying a trespasser in an absence of posted signage, or by sending them notification in writing. If you’re notifying in writing, I highly recommend you use a certified letter with a confirmation of delivery to the addressee.
Once this is done, you can head down to your sheriff’s department, local police department (if you have one) or to your district attorney’s office to obtain the forms to file for an order of no trespass. Complete the forms as instructed and file them.
Rules for Posting No-Trespassing Signs in Delaware
There are no specific rules governing the placement, size, color and verbiage of no-trespassing signs in Delaware. As always, it’s a good idea to post large and conspicuous signs at every entrance to your property and at relatively close intervals around the perimeter if you have a larger or undeveloped parcel of land.
And, just a reminder, posting your property against trespassers does indeed serve as a notice to trespassers or would-be trespassers!
Besides a couple of oddball exceptions for voyeurism and peeping as well as illegally entering buildings that house animals, Delaware’s trespassing laws are straightforward, short and exceedingly easy to understand. Both the statutes and the definitions contain no surprises.
So long as you do not flagrantly trespass on someone’s property, you should never have to worry about getting tagged with a trespassing charge in Delaware.
Tom Marlowe practically grew up with a gun in his hand, and has held all kinds of jobs in the gun industry: range safety, sales, instruction and consulting, Tom has the experience to help civilian shooters figure out what will work best for them.