Trespass

A fee simple property owner is said to have a right to exclusive possession, meaning the right to exclude others from the property. The right of possession depends on the owner's ability to invoke state power using the law of trespass, in its civil and criminal versions, and on the remedies trespass law affords. The crime and tort versions of trespass law are subject to exceptions and defenses, including consent, privilege, nondiscrimination and public policy, so that exclusive possession is not an absolute right.

 U.S. property law, while it evolved from English common law, favored the idea of near-absolute private ownership of property, embodied in the “fee simple absolute.” While pre-capitalist and indigenous property systems called for shared and multiple uses of land for housing, farming, resource gathering and other uses, the fee simple absolute was consolidated around the idea that all rights to use, exploit, inherit, and possess exclusively, would reside in the single property owner. Trespass law, both criminal and civil, developed to protect the landowner’s right to exclusive possession.

The crime and tort of trespass have similar elements. Any physical entry on another’s land, by a person or even the person’s physical possessions (e.g. car, farm animals), without privilege or consent, is a trespass. For criminal liability, or intentional tort liability, the entry must be intentional or knowing. A person who refuses to leave within a reasonable time after the owner revokes previous consent is also a trespass.

The most common defenses to trespass liability are consent and privilege. Privilege to enter another’s land may be based upon necessity (to save a life for example) or some public policy, such as the public trust doctrine giving access to the seashore. If the trespasser got the owner’s consent through fraud or trickery, the consent may or may not be a defense to trespass, as we will see in the Desnick v. ABCcase.

The law of public accommodations also limits the owner’s right to exclude others, and thus limits trespass liability. The common law doctrine applied to common carriers and innkeepers, primarily, although a minority of states (as New Jersey in the Ustoncase) apply the doctrine to all business open to the public. The 1964 Civil Rights Act prohibits discrimination based on race, religion, or national origin in hotels, restaurants, theaters and gas stations, and thus prevent private owners from denying or revoking consent to enter for discriminatory reasons. State public accommodation laws cover more categories of property owners and protected groups.

Tort liability for trespass entitles the owner to actual and punitive damages, even in cases where there is no measurable economic harm to the property. As we shall see later on, trespass liability for a physical invasion is subject to harsher remedies than other types of interference with use, covered by nuisance and land use laws. A civil court may also grant a landowner injunctive relief to prevent or terminate a continuing trespass.