Trespassing can have both civil and criminal consequences. A property owner may be able to sue someone who enters their land without permission. Meanwhile, the trespasser also may face charges. The prosecutor would need to prove that the defendant intentionally entered someone else’s property without permission, or remained there after being told to leave. This charge usually arises in the context of private property, but it can also arise if someone enters a store or other business, or even a city or state park, when they are not permitted to be there.
Criminal trespass generally is not considered to be a serious crime. In some states, it may not even be charged as a misdemeanor but instead may be charged as an infraction. People often compare it to burglary, which also involves entering property without permission. However, the consequences for burglary are much more severe.
Elements of Criminal Trespass
A defendant may be guilty of trespass even if they initially had permission to be on another party’s property if they remained there after they were told to leave.
The intent element of the crime means that the defendant must be aware that they do not have permission to be on the property, or a legal right to be there. In other words, if the defendant reasonably believes that they own the property, or that it is open to the public, the prosecution probably cannot secure a conviction. Sometimes criminal trespass can arise when someone initially does have permission to be on a property owner’s land, but then the property owner tells them that they need to leave. Refusing to leave can result in charges. (It also may result in other types of criminal charges if a confrontation develops with the property owner.)
The laws of some states require notice to the potential trespasser, since otherwise they might not know that they were trespassing. The property owner can provide verbal notice that another person is not welcome or that they need to leave the property. Sometimes signs or physical indicators, such as a fence or a locked gate, can convey the required notice as well.
Walking onto someone else’s land is the most obvious form of trespass, but it is not the only form. You may be convicted of trespassing if you get into someone else’s car without their permission. Also, state laws may define certain acts that fall within criminal trespassing laws, such as hunting on someone else’s land.
Penalties for Criminal Trespass
Criminal trespass may be charged as a felony, a misdemeanor, or an infraction. If the defendant enters someone else’s home, rather than another type of property, they may face a higher level of charge and harsher penalties. Entering a home may lead to a year in prison, for example, while entering another type of property may result in just two or three months in jail. If the crime is charged as an infraction or a low-level misdemeanor, the defendant may only need to pay a fine and may not face any jail time.
A defendant can be liable for trespass in both criminal and civil court.
Civil claims based on trespassing proceed separately from the criminal case and have a lower standard of proof. While the prosecution needs to prove the charge beyond a reasonable doubt, a plaintiff in a civil case must establish liability by a preponderance of the evidence (more likely than not). Liability can arise even if the trespasser did not damage the property or cause injuries, although damages will be minimal in these cases. In addition to damages, a property owner may be able to get an injunction against a trespasser to prevent them from continuing to enter the property.