Trespass – Explained

Cite this article as: Jason Mance Gordon, "Trespass – Explained," in The Business Professor, updated January 9, 2015, last accessed April 8, 2020, https://thebusinessprofessor.com/knowledge-base/trespass/.
Video Thumbnail
Trespass Tort
This video explains the tort of trespass to property.

Next Article: Conversion

Return to: TORT LAW

What is “Trespass”?

The tort of trespass is similar to the crime of trespass. It involves physically entering onto someone else’s land without consent or remaining there after being asked to leave (consent is revoked). The difference between the civil action and the criminal charge is that a tort requires the existence of damages to be actionable.

  • Note: In addition to personally entering someone’s land, trespass can occur by projecting something (such as pollution or garbage) onto another’s land without consent.

Discussion: How does the civil tort of trespass relate to constitutional protections? How do you feel about trespass and the requirement for damages to bring a civil action? Can you think of scenarios where trespass could take place with no damages, but a civil action is preferable to pursuing criminal charges?

Practice Question: Jason is in a local bar and music venue listening to a popular musical group. He drinks too much and becomes intoxicated. The bar bouncers kindly asks Jason to leave, but he refuses on the grounds that he rightfully paid the cost of entrance. If Jason refuses to leave, has he committed a tort?

Proposed Answer

  • Trespass to land or property occurs when a person intentionally enters someone else’s property without permission. In order to prove that a defendant is liable for trespass, the plaintiff needs to prove that their claim had the following;
    • Entry. That the defendant intended and gained entry into the plaintiff’s property. It is not required that the defendant intended to do so wrongfully.
    • Property of another. A trespass claim must be brought by a person with a legal interest in the property, such as an owner or tenant.
    • Without the owner’s consent. Entry into the property must be unauthorized, either expressly or implied. This also includes choosing to remain on a property even when the owner has asked that they leave.
    • Damages. The plaintiff should suffer some injury so as to have additional support in the trespass claim. However, damages are not normally a requirement by the court. Even where damages are evident, it is not always that the plaintiff must prove that the defendant intended to cause the damages.

In this situation, Jason is likely trespassing. Paying the fee for entry would likely be construed as a temporary license to be on the property – making Jason an invitee. When the owner of the property revokes the license, Jason is no longer legally on the property. If the owner was wrongful in making Jason leave, he may have a contract claim against the owner for damages – such as the cost of the ticket.

Academic Research

Farber, Hillary B., Keep Out! The Efficacy of Trespass, Nuisance and Privacy Torts as Applied to Drones (November 1, 2016). 33 Ga. St. U. L. Rev. 359 (2017). Available at SSRN: https://ssrn.com/abstract=2852083

Was this article helpful?