You may be familiar with trespass as a crime, but trespass may also be a tort. The elements of the tort trespass are:

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1. The intentional

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2. Unprivileged

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3. Entry onto the Plaintiff’s real property (land)

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4. Without permission.

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Intent is an element of every intentional tort, so if the entry onto the land is a mistake or unintentional, this tort does not exist.

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If the trespass occurred through operation of law (like a police officer pursuing a suspect through the land) or because of public safety concerns (like when firefighters enter property to fight a fire), it is not actionable.

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The Defendant may physically enter the land, or may do so by use of an extension (such as tools or objects, like a rock). Light, odors, or sound from the Defendant is not trespass. Entry must also be within the “immediate reaches” of the surface of the property, which means an airplane would not trespass if it flew over the land.

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If the Defendant has permission from the property owner to enter the property, he or she has the privileged right to enter. Permission might be implied (as in the case of the meter reader coming onto land to read a meter).

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DEFENSES TO TRESPASS

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1. All of the elements are not present.

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2. Consent of the owner of the property.

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3. Privilege.

Intentional Torts Involving Property