Trespassing is often thought of as barely a crime at all, but it can actually be really serious business. Depending on the state, circumstances and what you were doing at the time, trespassing can be a felony and can entail civil or criminal charges.
But something to keep in mind is that it’s easy for property owners to just throw trespassing charges around if you get caught on their property.
The trick to beating these charges is to know the letter of the law, in your home state, inside and out. This is because there are quite a few defenses against trespassing that might help you beat the charge or even get the case dropped entirely.
Keep reading, and I’ll give you some good advice for beating trespassing charges with the help of a good lawyer.
First Things First: Consult an Attorney!
Before we go any further, now’s the time where I implore you to contact an experienced, respected attorney in your area who has dealt with trespassing cases before, specifically trespassing defense.
Now is not the time to play amateur lawyer and try to represent yourself or do anything stupid. Chances are extremely good it will end in failure and you’ll wind up with a big legal bill on your hands or, even worse, criminally charged!
Big Boy Rules apply here, so if you haven’t already, contact an attorney.
Always Check Your State’s Laws
Whether you have been accused of trespassing, or you just want to brush up on the law so you are better equipped to deal with trespassers, it’s imperative that you thoroughly read and understand your state’s laws on trespassing:
Many states have fairly clear laws on trespassing. Others do not. Most have different degrees of trespassing and various qualifiers and defenses against the same.
You can’t assume that merely stepping on someone’s undeveloped property is a minor crime, and likewise, stepping onto the curtilage or grounds of a residential property might not be as serious as you were thinking depending on the context.
There are tons and tons of variables, and even in states where the law seems crystal clear precedent and how various other laws interact get significantly change the interpretation of what appears to be plain language.
Read and understand, but make sure you get a seasoned legal professional to go over the laws with you. Otherwise you’re just groping in the dark.
No Posted Signage? Then Maybe No Problem
This is one of the best ways to get out of a trespassing charge, or at least get out of a more serious charge.
Many states have strict mandates on posting signage, and the requirements might be different depending on the type of property.
In many states, absent prior notification in writing or verbally, someone cannot be charged with trespassing for entering onto undeveloped land that doesn’t have a fence around it and lacks any posted signs or paint markings.
It’s worth investigating the signage requirements in your state, and figure out if the property you are accused of trespassing on does or does not meet those requirements.
The property owner has neglected to post properly, you might be off the hook or facing a far less serious grade of charge.
You Might Have Limited Rights to Set Foot on Someone Else’s Property
This is largely situational, but is a fairly reliable one in crowded residential areas, or some properties that have right-of-way issues or easements.
Sometimes, by deed or by law, you might have a legal right to be on someone else’s property for very specific purposes.
For properties bordering water, it might be to access a boat launch or easement. You might have a limited right to be on someone’s property for maintaining trees or other plants, or fencing, near the property line.
It all just depends, but if your property is situated in such a way that accessing certain parts of it safely are nearly impossible without setting foot on someone else’s land, you might have a legal right to do so.
It’s worth looking into, and in any case, if you’re dealing with an out-of-control or fanatical neighbor who doesn’t want you stepping one centimeter on their property, this might be a good place to start.
Did You Have Explicit Verbal or Written Permission?
If someone wants to accuse you of trespassing on their property, but you had prior permission from them (written or verbal) for the same or for any other purpose, or you had a lease to use the property or any other legal agreement, the trespassing charges might not apply.
This is a very lengthy and sticky subject in and of itself, and one I will only highlight here for brevity.
Basically, even if the property owner legally terminates your right to be on the property, the law might extend you a certain grace period or other rights. This is especially common in the case of tenancy for residents or other purposes.
Look at it another way: if you had permission expressly granted to you to be on a person’s property for a job or for some other reason, and then for whatever reason they immediately revoked it, told you to leave, and then tried to charge you with trespassing, the law would probably come down on your side under the circumstances.
It takes time for you to make a good faith effort to leave a property, especially if you have material or possessions also on the property.
Are You Legally Authorized to Be On the Property in Commission of Your Lawful Duties?
If you are on someone’s property for a legal, lawful purpose or otherwise in the commission of your lawfully appointed duty at a local, county or state level, you probably cannot be charged with trespassing by an irate property owner.
For instance, a police officer that is lawfully executing their duty for public good or when following any lawful command from superiors cannot be charged with trespass during the commission of those duties.
Other state agents and employees may likewise be immune from trespassing charges, practically speaking.
If you are in any line of work- any legal line of work!- where you routinely must go on to other folks’ property in the course of your duties, something like a private investigator, bail agent, inspector, reposition specialist or something like that, check and see if you are protected.
You Could Have the Right to Temporarily Enter to Retrieve Animals or Land
A simple and easily understood defense against trespassing, only in some states, is the legal allowance to enter the property of another to retrieve an animal that has crossed onto the property.
There are usually a few caveats on this, namely that you get control of the animal and then depart the property as quickly as possible. Likewise, you can still be civilly liable for any damage that you or the animal caused during entry or during retrieval.
Public Necessity is Usually a Good Defense Against Trespassing
Public necessity is a defense against trespassing whenever the trespassing was done in order to protect the public during a crisis or emergency.
As you might imagine, there are many caveats and circumstantial requirements for this: specifically, there is a necessity for reasonableness, i.e. would a reasonable person have done the same thing in the exact same circumstances, and it must be immediately necessary to protect the public.
If the specified criteria are not met, then you cannot use public necessity as a defense against trespassing charges.
Private Necessity Means You Might Only be Held Civilly Liable
Private necessity is a defense that is similar to public necessity, but it should be pointed out that it is not a complete defense against trespassing charges.
For instance, you might be able to use private necessity as a defense against the charges if you had no other option to protect yourself or someone you were with against immediate harm or some other danger than to enter the property in question.
Once again, standards of reasonableness and necessity will be judged against your actions in exact detail.
Also, even if you can use private necessity as a defense under the circumstances you will still be completely liable, civilly, for any damages, repairs or other loss that the property owner might experience as a result of your actions – however necessary those actions were means nothing in this case!
What You Are Carrying or Doing Makes a Big Difference!
This is a big one for hunters, and if you hunt regularly, pay attention. What you’re carrying and what you are doing at the time of trespassing might make a big difference when it comes to your defense and to the grade of the charges.
Another example: in states like Texas, no matter what you were doing or why, if you are trespassing while carrying a firearm, for any reason, you might be facing a more stringent charge or require significantly greater extenuating factors to defend against the charges of trespassing.
Likewise, if it can be reasonably proven that you’re trespassing to commit any other crime, or committed other crimes prior to the trespassing, you’re going to be much worse off than if you just innocently blundered onto someone’s land unknowingly.
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.