Trespassing can be harmless, but it can also be a significant problem. In addition, trespassing is defined as a crime in the United States. It may not seem like a big deal to take a shortcut through someone else’s yard, but there are many reasons why individuals may want to keep their land as private property.
What Is Trespassing?
Trespassing is the act of entering land without the right to be there – without the consent of the landowner. In most cases, some level of intent is required such as knowing the land belongs to someone else, but entering it anyway.
Accidental trespassing is usually not considered a crime as long as the individual did not do any harm or damage to the land and did not interfere with the owner’s use of the land. In some cases it’s obvious that the land is the property of someone else, for example, yards in a neighborhood that are obviously owned by the homeowners or acreage with appropriate signage posted. But in cases where it isn’t obvious, accidental trespassing is rarely prosecuted.
Remaining Beyond One's Welcome
Trespassing can also be the act of a person remaining on land once it’s been made clear he is not welcome. For example, if homeowners have clearly asked a guest to leave a party, and the guest refuses, this is regarded as an act of trespass, and the police can be called to enforce it.
As another example, an individual is hiking in the woods and comes across a sign stating that the land is private property. If they continue onwards, they’re knowingly trespassing on that land. If the individual leaves the property after discovering they don’t have the right to be there, it’s unlikely any charges would be pressed.
Trespassing can be a criminal offense or a civil charge. Criminal trespass laws are enforced by law enforcement and park rangers who often catch people in the act of trespassing. Civil trespass laws require landowners to proceed with a civil suit in court in order to collect damages for harm done to their property.
Trespassing in California
In California, there are over thirty different kinds of trespass spelled out, but the basic tenets of all trespassing laws include these requirements:
- The individual is knowingly and willingly on land owned by someone else.
- The individual has come onto this property with the specific intent to interfere with the landowner’s property rights.
- The individual has in fact interfered with the landowner’s property rights, and often does so for a significant length of time. The law uses the term occupy to discuss this requirement; if the individual has entered the owner’s land, but does not occupy that space for a significant length of time, it is not necessarily trespassing.
Examples of Trespassing
In order to understand how these factors work together, consider these examples:
- A man who is hiking comes across a person’s private property and enters it to take a rest at a picnic table. The man is willingly crossing the property line with the intent to use a picnic table that is not his. However, as long as the man does not damage the land or the table, and leaves within a reasonable time, it’s unlikely that he could be prosecuted for the trespass.
- A woman is protesting a certain store’s labor practices in the store’s parking lot, which is private property that is owned by the store. If her actions deliberately interfere with the store’s right to conduct its business – blocking people from entering the store or loudly bothering others in a way that interferes with the store’s normal operations – she can be charged with trespass. If the store asks her to leave the property and she does not, she can be charged with trespass. However, if she simply stands there with no intent of interfering with the store’s business, it may not count as trespassing.
- A man parks his vehicle on someone else's property and decides to camp there for several days. Even though the land is undeveloped and seemingly unused, this illustrates trespassing on private property with intent to stay, which violates California Penal Code Section 602.
Types of Trespassing Charges
In California, trespass can be charged as an infraction, a misdemeanor (most commonly) or a felony. It’s charged as an infraction when an individual willingly enters someone else’s land when there is a fence and/or no trespassing signs posted. The fine is $75 for a first-time offender and can reach $250 if the crime is repeated.
As a misdemeanor, a trespassing charge can result in up to six months in jail, up to $1,000 in fines, and other probation or community service the judge might choose to assign. There are a few exceptions to the allotted jail time. For example, if an individual refuses to leave a safe space like a battered women’s shelter after asked, they can be charged with up to a year of jail time.
To be charged as a felony, the trespassing act must be accompanied by a threat, usually a threat to do violence to the landowner and/or his property. If a criminal threat has been made, the felony trespassing charge can result in a minimum of 16 months in jail up to a term of three years; fines can reach up to $2,000.
Fighting a Trespassing Charge
If an individual charged with trespassing doesn’t believe they have earned the charge, there are several ways to make this argument in court:
- Lack of signage: If the property has no fence or has no signs posted declaring it to be private property, the argument can be made that the trespassing was accidental and, therefore, the charge should be dismissed.
- Right to be on the property: This defense is most common in labor disputes, when a member of a union has union rights to be on the premises of a job, but is asked to leave by the landowner. In this case, the legal rights to be on the grounds override the owner’s request.
- Consent to be on the property: In cases where the individual initially had the owner’s consent to be on the property and occupied the property for a long time, the trespassing charge is arguable since they were initially given consent. However, if the owner specifically withdraws this consent or asks the individual to leave, and they do not, the individual can be charged with trespassing.
- Lack of occupation: In some cases, if the trespass was very brief and had no significant or tangible effects on the landowner, it can be argued that the trespasser did not occupy the property long enough to affect the owner.
- Lack of obstruction: If the person trespassing did not obstruct or interfere with the property owner’s rights to the property, it can be argued that the individual hasn’t actually committed a criminal trespass.
The important matter here is to remember the trespassing charge must involve willing intent and action in order to be fully prosecutable. If any one of these three key elements is not present, the charges can be defended in court.
Criminal Trespassing Charges
If a trespassing violation is charged as an infraction, the individual simply pays the fine. Much like other fines, such as for parking tickets or speeding tickets, infractions do not usually appear on a criminal record.
If the trespassing violation is charged as a misdemeanor or a felony, and the individual is convicted of criminal trespassing in California, the conviction will show up on that person’s criminal record. In some instances, a judge might agree to expunge the record, especially if the only penalty was a successfully completed probation, but the charge is subject to all other California laws regarding criminal convictions.
Read More: What Is the Typical Sentence for Criminal Trespassing?
Enforcing a No Trespassing Zone
The best way to protect property in California is to use fencing and appropriate signage to explicitly mark the boundaries of the land and to communicate to others that the property is not for public use. Deliberately crossing onto private land when it has been marked as private shows intent and counts as trespassing.
Landowners may bring trespassers to civil court in cases where trespassers have done damage to the property, even if there was no specific crime committed or if the individual is cleared of the trespassing charge. If, for example, an individual rides a dirt bike through someone’s yard and damages their lawn, the owner can take that individual to civil court to make them pay for the repairs.
California Civil Trespass
Under California law, landowners are expected to maintain their property with a duty of reasonable care, meaning that hazards which may exist on that land are properly dealt with. If an individual is injured on an owner’s land even if they are trespassing, the owner can be held liable for those injuries in some cases. This holds true for all guests on the owner’s property, but an unexpected injury to an uninvited trespasser can hold up in court as, partially, the fault of the land owner. However, the landowner may be less liable for an injury done to a trespasser than, say, an injury done to an invited friend.
How landowners manage their property can affect their liability. Using fencing and signs to denote the private property, as well as any hazards that may exist on the property, can help reduce the owner's liability to trespassers. For example, posting a sign that says, “Warning Steep Grade” can help protect a homeowner from unexpected liability if a trespasser falls down a slope and injures herself. If a fenced-in property has no-trespassing signs posted, as well as signs warning of dangerous holes, the landowner is far less likely to be found liable for a trespasser’s injuries than a landowner who lacks these warnings.
Overall, trespassing in California includes a lot of actions, but the equation remains the same: intentionally entering another’s property with the intent to cause harm or disrupt the owner’s activities in a way that impacts the owner’s rights to the property. It’s easy to avoid trespassing charges by simply staying aware.
Danielle Smyth is a writer and content marketer from upstate New York. She holds a Master of Science in Publishing from Pace University. Her experience includes years of work in the insurance, workers compensation, disability, and background investigation fields. She has written on legal topics for a number of other clients. She owns her own content marketing agency, Wordsmyth Creative Content Marketing, and enjoys writing legal articles and blogs for clients in related industries.