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Trespassing is a violation of another’s space or property, punishable under tort law and sometimes criminal law. There are three types of trespass torts: ground, movable property, and personal. The harm caused defines the infringement, and there are defenses such as consent, necessity, and self-defense. Castle doctrine allows homeowners to use force, including deadly force, to stop a home invasion without retreating.
An infringer is someone who has violated another’s space or property in a manner contrary to applicable law. The law of trespass falls under the common law of torts and in some circumstances may even be prosecuted as a criminal offence. There are typically three trespass torts: ground trespass; trespass on movable property or things; and personal transgression. An infringer is the person accused of committing the violation.
The outlines of tort law and what precisely defines tort vary by jurisdiction, but the general theme is that one’s space and things maintain a certain integrity that cannot be violated without permission. Breaking and entering is perhaps the most commonly considered trespass. Signs declaring “No Trespassing” are popular with property owners. In most cases, however, signs and warnings are not needed to define the trespass: if a person crosses land that does not belong to him, by law, he is usually a trespasser.
However, simply crossing land is not typically a violation that the law will punish. Under the early common law system, developed in medieval England, setting foot on another’s land, or crossing property that was not one’s own, was typically punishable. This is usually not the case anymore. Most countries with tort laws penalize only offenders who have caused definable harm, acted with demonstrable negligence, or violated a discreet right.
The tort of trespass is similar, involving only physical property on the land. In law, “movable property” is a word synonymous with “things”. Most cases of trespassing on movable property involve the unauthorized use or wholesale destruction of someone else’s property. These assets can be either tangible, like a car, or intangible, like storage space on an email server. A person who interferes with or damages another’s property, or a person who prevents an owner from making full use of his or her property, is usually a trespasser.
The third category of violation, violation of persona, involves undue interference by one person with the sanctity of another’s personal space. Assault, battery and false imprisonment are the classic physical violations. Typically, to be considered a transgressor of another’s person, one must act intentionally.
Depending on the facts, an offender’s transgressions could even amount to criminal violations. Assaulting another may always fall under the tort law, but if the assault is egregious enough – a premeditated attack, for example, or a gruesome beating – it may also be punishable under the penal code. This duality applies to all three categories of offences. Arson is often both a criminal trespassing and a civil tort, as is burglary. Similarly, unauthorized access to your bank account can be both a chattel violation and a criminal violation when large-scale financial fraud is involved.
Whether civil or criminal law, infringement is always defined by the harm it causes. Infringement laws exist in many respects to provide redress to people who have been harmed by another’s encroachment. There are some exceptions, however, and as with all legal claims, there are always defenses.
If an accused infringer can show that his or her alleged violation was permitted or consented to by the plaintiff, he or she can typically escape prosecution. Necessity is also a defense in many places. Self-defense is a very common defense against the trespassing of the person, and sometimes even the terrain. When that land includes your home, the law often favors the homeowner.
Most jurisdictions recognize the sanctity of one’s home and often extend special personal and family protection rights against unwanted intruders. Under most normal circumstances, if one is approached and threatened by another, he has a general duty to retreat, or at least attempt to retreat, before retaliating. A home break-in eliminates that duty in some places, known as “castle doctrine” jurisdictions. Castle doctrine provides that someone threatened with attack in their home can use force, including deadly force, to stop the attack without first retreating. An offender injured by a homeowner in this circumstance would have no recourse.
