Difference Between Trespassing & Criminal Trespassing

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Criminal trespass involves entering property knowing that one is not supposed to be there. Trespass involves entering the property without this intent. A district attorney will prosecute criminal trespass in a criminal court. A property owner will litigate civil trespass in a civil court.

Both civil and criminal trespass involve entering an owner’s land or accessing the owner’s property without permission. Criminal trespass involves entering or remaining in a place knowing one is there without a license or privilege. Trespass involves simply entering onto land without the consent of the landowner. Trespass does not require a state of knowledge, but only requires the act of entering.

An example of criminal trespass is standing in an apartment complex in front of a no trespassing sign. An example of civil trespass is walking into a homeowner’s gated garden without his permission.

Is Criminal Trespass a Serious Crime?

A district attorney can charge an act of criminal trespass as an infraction, a misdemeanor or a felony. A DA will charge a misdemeanor or felony in criminal court. The level of the crime is determined by the defendant’s criminal history, what she was doing on the property and whose property she entered. In most states, criminal trespass is an infraction or a misdemeanor.

In several states, including New York and Florida, a DA can charge criminal trespass as a felony. In New York, a court can find a person guilty of criminal trespass in the first degree when the trespass involves the possession of an explosive or a deadly weapon, including a firearm, rifle or shotgun. A conviction may also result if the trespasser had knowledge that another participant in the crime had possession of an explosive or a deadly weapon. The action of trespassing with such materials is considered a Class D felony, and the penalty ranges from no jail with probation to incarceration for seven years.

Breaking and Entering vs. Trespassing

The crime of breaking and entering involves entering a residence or an enclosed property with force. Force can be as slight as the push to open a door. If the party who breaks and enters has the intent to commit an offense on the premises he entered, the act can be charged as a burglary. If the party does not have the intent to commit an offense on the premises, the act can only be charged as criminal trespass.

For example, a party who breaks a window to enter a home and then crawls into the home can be charged with burglary if he entered the home to steal personal property. But a party who breaks a window and puts his hand inside the hole just to see the extent of the damage could be charged with criminal trespass.

Penalties for Civil Trespass

The party who owns the real or personal property can sue the trespasser for damages in civil court. Usually an owner sues when the trespasser has damaged her property. If the trespasser loses, the court will order her to pay for the damage that the owner suffered. In some cases, the court may also require the trespasser to pay the owner’s court costs and attorney’s fees.

Preventing Acts of Trespass

A property owner can let a party know he is not welcome on her property by telling him he is trespassing and ordering him to leave. The owner can also put up one or more no trespassing signs. An owner should speak to her local police department about the number of signs needed and where and how to post them.

Possible Defenses to Trespassing Charges

A trespasser has a number of possible defenses to the wrongful act of trespassing. These include having the owner’s consent to enter; public necessity to protect the community or society from a greater harm that would have occurred without the trespass; private necessity to protect the trespasser, the trespasser’s property or a small number of people; and privilege, when public policy allows the trespass.

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About the Author

Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.