- A victim can sue for trespass to land, even if the trespasser did not do any harm while they were trespassing. The trespasser may have committed a trespass even if they thought that the land was theirs or that it was lawful to enter;
- In order to bring a trespass to chattel claim, the victim would need to show that there was actual damage or dispossession resulting from the perpetrator’s trespass;
- However, if the trespasser created a forced sale of the property to themselves, this would constitute a conversion.
It is important to note that these intentional wrongs, under tort law, are civil wrongs. Some of them may also be criminal offenses, but tort law addresses them as issues for resolution under civil law.
Are There Any Defenses to Intentional Interference With Another’s Property Rights?
In terms of defenses to property torts, the most common defense would be consent. An example of this would be if the victim gives their express or implied consent to the alleged trespasser for them to enter the property or possess the chattel.
Some defenses are as follows:
- The alleged trespasser has been given express verbal or implied consent by the property owner to enter the property;
- The law gives a certain person a right to enter the property. For example, a person may have an “easement” to use someone’s driveway in order to access their landlocked property;
- It is necessary for a person to enter a certain property. For example, if a person is being chased, they might hop over the fence of a property they do not own and hide behind some bushes as a way to seek safety. The law typically allows a person temporarily to trespass to the extent necessary to seek safety.
The following three elements must be proven to establish consent as follows:
- Capacity to Consent: The person giving their consent must have had the mental capacity to consent. Mentally incompetent people, intoxicated people, and minors generally are not considered to have the capacity to consent;
- No Fraud or False Pretenses: Simply put, the consent obtained must not have been coerced or gained under false or mistaken pretenses. The property owner must have consent of their own volition;
- Scope of Consent: The alleged trespasser must not exceed the scope of consent provided. An example of this would be if the property’s owner provided consent for the alleged trespasser to enter into specific parts of the property but others.
Another common defense to intentional interference with property rights is necessity. Necessity occurs when the alleged trespasser invades the plaintiff’s property for emergency reasons. There are two types of necessity:
- Public Necessity: Public necessity refers to when the trespassing action is necessary in order to protect the community. The public necessity defense is a complete bar to recovery, meaning that the plaintiff will not be able to receive any damages whatsoever;
- Private Necessity: Private necessity refers to when an act of trespass is necessary to preserve the trespasser’s own interest. This is a limited defense, meaning that the trespasser is not responsible for any nominal or punitive damages. However, they would be legally responsible for any property damage they caused.
- Additionally, the victim cannot force the alleged trespasser to exit the property until the emergency has been resolved.
What Are the Remedies for Intentional Property Torts?
There are three basic types of remedies in tort law:
- Legal Remedies: Legal remedies for property torts are also known as “money damages” or “compensatory damages.” These payments are made by the perpetrator of the tort to the victim in order to compensate the victim for their economic and non-economic losses, such as pain and suffering. Punitive damages may be included in especially serious tort claims;
- Restitution: Restitution is a remedy that is also meant to restore the victim to a position of “wholeness,” meaning a status that is as close as possible to their state prior to the tort. These can include payment of money damages;
- Equitable Remedies: Equitable remedies are available when monetary damages are not sufficient to restore the victim to wholeness. For example, victims of physical harm or harassment may obtain a restraining order in order to prevent the perpetrator from making contact with or coming near the victim.
- A temporary injunction or permanent Injunction may either prohibit unlawful activity by the perpetrator or may order them to take specific affirmative steps. Injunctions are especially common in trespassing and nuisance tort cases.
As previously mentioned, there are different types of restitutionary remedies. These can be further broken down as:
- Restitution: Similar to damages, the amount of restitution is calculated based on the perpetrator’s gain as opposed to the victim’s losses;
- Replevin: Replevin is a remedy that allows the victim to recover possession of personal property that they may have lost as a result of the tort. An example of this would be recovering property that was stolen. As a tort remedy, replevin can be coupled with legal damages in specific cases;
- Ejectment: This process involves the court ejecting, or dispossessing, a person who is wrongfully staying on real property owned by another person. This is a common remedy in cases involving continuing trespass;
- Property Lien: If the defendant cannot afford to pay ordered damages, a judge may place a lien on their own real property. They would then sell the property and forward the proceeds of the sale to the tort victim.
Should I Consult a Lawyer?
If you own property and are experiencing intentional interference with your property rights, you should consult with an experienced local property law lawyer. LegalMatch.com can connect you to a lawyer who knows your state’s laws. State laws on property rights and trespassing can vary widely, so it is important to work with an area attorney who will best know the law in your state.
An experienced attorney can help you prepare and file a lawsuit. They can also represent you in court, as needed while helping you work towards obtaining the right tort remedy for your situation.
Save Time and Money - Speak With a Lawyer Right Away
- Buy one 30-minute consultation call or subscribe for unlimited calls
- Subscription includes access to unlimited consultation calls at a reduced price
- Receive quick expert feedback or review your DIY legal documents
- Have peace of mind without a long wait or industry standard retainer
- Get the right guidance - Schedule a call with a lawyer today!
Need a Property Lawyer in your Area?
By State
LegalMatch Legal Writer
Susan is a member of the State Bar of California. She received her J.D. degree in 1983 from the University of California, Hastings College of Law and practiced plaintiff’s personal injury law for 8 years in California. She also taught civil procedure in the Paralegal program at Santa Clara University. She then taught English as a foreign language for eight years in the Czech Republic. Most recently, she taught English as a second language for Montgomery County Public Schools in suburban Washington, D.C. Now she devotes her time to writing on legal and environmental topics. You can follow her on her LinkedIn page. Read More
Susan is a member of the State Bar of California. She received her J.D. degree in 1983 from the University of California, Hastings College of Law and practiced plaintiff’s personal injury law for 8 years in California. She also taught civil procedure in the Paralegal program at Santa Clara University. She then taught English as a foreign language for eight years in the Czech Republic. Most recently, she taught English as a second language for Montgomery County Public Schools in suburban Washington, D.C. Now she devotes her time to writing on legal and environmental topics. You can follow her on her LinkedIn page.
