No Trespassing Sign on brick wall

What Does Trespassing Mean?

Trespassing is one of the most misunderstood property crimes.

It is an offense the average property owner is quick to use in accusation, yet not nearly as often prosecuted with the same vigor. Even though many suspects are arrested, arraigned and end up having to navigate their way through the process of posting bail, often with the help of a bail bonds provider, trespassing is a crime that remains difficult to define with any precision and even more difficult to prosecute and defend for the benefit of a jury.

One of the key problems with most trespassing statutes is the difficulty in proving intent. If a person walks across someone else’s property and has no way of knowing they have crossed a property line, are they trespassing? The property owner says yes. The law might not.

So what exactly is trespassing?

Property Rights

One of the key tenets of English common law is the concept of property rights. If something belongs to a person, or they hold title to it in the case of real property, then the common law dictates that property is theirs to do with as they please.

When it comes to real property, the common law has been traditionally interpreted to mean the owner is “king of his castle.” The presence or absence of others on that property is therefore at the pleasure of the owner. Being on the property without leave would therefore be an offense against the property owner. Thus the trespass laws.

A good example of this legal concept were the restrictive poaching laws of medieval Europe. The king was said to own all that he surveyed, meaning any hunting, farming or other use of the land had to be by his leave. Anyone standing on solid ground could be said to be trespassing if the king wished it. While the current laws aren’t quite that brutal, the basic principle still applies. Any offense against the property of another could be interpreted, at least, as a trespass.

Mens Rea

The reason jails are not filled to capacity with wandering people who crossed an invisible line somewhere is because trespassing, at least criminal trespass, requires some level of intent. Most criminal laws rely on a legal concept called “mens rea” which is Latin for “the guilty mind.” A criminal is expected to have formed some intent to break the law prior to the offending act. Otherwise, their so-called transgression could be defended as a simple mistake. Absent any other evidence, such a defense would produce reasonable doubt per se and be impossible to prosecute.

If someone wanders on to someone else’s property, recognizes their mistake and leaves the property, they can’t practically be charged with a crime, since they likely had no intention of violating someone else’s rights to what is theirs. However, if that same person sees a fence with a sign on it that says “no trespassing,” and still climbs the fence to invade the property, it is much easier to infer they made a conscious decision to trespass. That decision could form the basis for a finding of “mens rea” and make it much easier to prosecute a criminal case. It wouldn’t necessary guarantee conviction, but at the very least it would demonstrate the defendant didn’t make an inadvertent mistake by simply wandering somewhere they didn’t belong.

Other Defenses

There are some gray areas when it comes to disputes over property rights. One of the most common is when the owner or agent for an owner of a shopping center or other space where large numbers of people routinely gather singles out one person and tells them they are no longer welcome on the property.

The reasons for such disinvitations are legion, but one of the legal principles that is often overlooked in such cases is the trespassing laws don’t necessarily apply equally to a place into which the public is routinely invited when compared to an individual’s kitchen, for example. A grocer open to the public and doing business in an average municipality can’t credibly invite everyone in the neighborhood into their store except the three people who complained once too often about the price of breakfast cereal, and they certainly can’t hold them criminally liable for going grocery shopping.

Trespassing is one of those laws that is quite often formed into a small club and used to browbeat reasonable people at the behest of an overzealous property manager. Whether it rises to the level of a criminal act, however, is a far different proposition.

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