Criminal trespass involves being on someone else’s property without permission. But the crime isn’t as simple as just being where you’re not supposed to.
Someone caught trespassing on another person's property can face trouble, even possibly a civil lawsuit. But trespass is first and foremost a criminal offense.
While state laws define criminal trespassing somewhat differently, the typical elements of the crime are:
- intentionally entering or remaining on
- someone else's property
- without authorization.
Trespass Specifics
Intent. In order to commit criminal trespass, you must either go onto property knowing that you don't have permission to be there or remain on property after learning that you don't have the right to be there. Accidentally wandering onto someone's land while hiking, for example, typically isn't considered criminal trespass.
Warning or notice required. In many states, laws require there be a warning that you aren't allowed to be on property before you can be convicted for trespassing on the property. While a property owner can directly tell a trespasser to leave the premises, in many states, there are other ways to provide notice that property is off limits. For example, a sign saying "No Trespassing," a fence around the property, or a locked door to the property will do the job.
Specific acts considered trespass. Many states have a general description of trespassing and also outline specific acts that count as the crime. Hunting on someone else's land, cutting down trees without permission, or even tampering with vending machines can be a form of criminal trespass. Entering or remaining in a motor vehicle without the owner's permission is another common form of criminal trespass.
Penalties for Criminal Trespass
Criminal trespass is related to burglary but is generally considered to be a less serious crime. It's often a misdemeanor or an infraction. In many states, though, it can even be a felony. How seriously the offense will be treated depends on the circumstances of the case.
Generally, criminal laws provide stiffer penalties for illegally entering a residence than for other types of trespass. In Kentucky, for instance, a conviction for entering another person's home without permission can result in up to a year in prison and a fine not to exceed $500. Convictions for most other types of criminal trespass in that state—including illegally entering any type of nonresidential building or enclosed land—carry the possibility of 90 days imprisonment and a fine of up to $250. Other kinds of trespassing in Kentucky are usually violations and can result in fines of no more than $250. (Ky. Rev. Stat. Ann. §§ 511.060, 511.070, 511.080, 532.090, 534.040 (2017).)
As noted above, in addition to criminal charges, a trespasser can face civil liability. Because trespass is a violation of someone's property rights, a property owner can sue a trespasser for money, even if the trespasser didn't cause any harm. (If the trespasser's presence didn't hurt anyone or damage property, though, the plaintiff will likely only be able to recover nominal damages.) Property owners can sometimes sue not only for money, but also for an order putting a stop to a continuing trespass.
Get Legal Help
Criminal statutes and penalties vary by state. For more information about criminal trespass, or to learn about the laws in your area, consult an experienced criminal defense attorney.
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What is Trespassing?
It is an offence to trespass on public and private property in Ontario. Under the Trespass to Property Act, you commit trespassing when you:
- go onto another person’s property where it is prohibited with notice in writing (can be a sign stating ‘NO ENTRY’);
- do something on another person’s property that is prohibited. Things that are prohibited are listed on a sign; or
- do not leave the property immediately after being told to do so by the owner or a person authorized by the owner.
If you can show that you thought that you had permission to be on the property, then you have a defence to a trespassing charge. It is up to you to convince the court that your belief was reasonable. Permission can be withdrawn at any time and it would be trespassing if you were asked to leave the premises and refused to do so. However, you cannot be asked to leave based on discriminatory reasons (for example, on the basis of race or religion or age).
A police officer or someone who is legally occupying the property can arrest you without a warrant while you are still on the premises if they have reason to believe that you are trespassing. Once you have left the property, a police officer can only arrest you without a warrant if he or she has reason to believe that you were trespassing and they must establish your correct name and address.
If you receive a ticket for trespassing under the Trespass to Property Act and cannot afford to pay the fine, then follow the directions on the back of your ticket to bring it to court and ask to have it reduced to something you can afford to pay – see the Wiki section on Tickets.
Cities and towns in Ontario are private property owners. They have a right to issue trespass orders under the Trespass to Property Act if you illegally occupy the property. For example, Nathan Phillips Square and Metro Hall are the property of the City of Toronto, and officials can exercise their discretion in prohibiting people from being at the Square. You are protected by Ontario’s Human Rights Code. It is unlawful for officials to ask you to leave due to factors such as your age, race, or sexual orientation.
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What is Squatting?
You are squatting if you live in an unoccupied building or house that you do not own, rent or otherwise have permission from the owner to use. Squatting itself is not an offence but, depending on the circumstances, you could be fined for trespassing or charged with several Criminal Code offences. For example:
- trespassing at night – loitering or prowling near a dwelling house at night
- breaking and entering
- being unlawfully in a dwelling house
- mischief
Trespassing at night – loitering or prowling near a dwelling house at night while on someone else’s property is illegal and you may be criminally charged unless you can show you had a lawful excuse to be there. The trespass must happen between 9pm and 6am. Usually, near a house means on the property or lingering outside a window.
Breaking and entering – when you enter a place through a permanent or temporary opening and you have the intent to commit an offence (e.g. theft). Again, it is up to you to show a lawful excuse if charged. If you are found guilty of breaking and entering a dwelling house, it can be a serious offence. If the place involved is not a dwelling house, then the maximum punishment is either 10 years or 6 months imprisonment, depending on the circumstances.
Unlawfully in a dwelling house: – illegally entering a dwelling house with the intent of committing an offence inside. Again, it is up to you to show that you didn’t intend to commit a crime or that you had a lawful reason to be there.
For each of these offences, the dwelling house must be “kept or occupied”. You may have a defence to the charge if the dwelling house has been abandoned for a long time.
Mischief – intentionally and without lawful excuse, damage property, make property useless or dangerous, interfere with the lawful use of property, or interfere with anyone in their lawful use and enjoyment of property (E.g. drawing graffiti on abandoned buildings, burning another person’s property or using utilities without permission). The maximum punishment for mischief will depend on the value of the property that the mischief related to.
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Being arrested?
If you are being arrested, you should immediately ask to speak to a lawyer or duty counsel. You should not make any statement before you have had the opportunity to speak with a lawyer. You rights when you are placed under arrest will depend on what you are being arrested for, and whether you have been arrested by the police or by a civilian.
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What is Trespassing?
It is an offence to trespass on public and private property in Ontario. Under the Trespass to Property Act, you commit trespassing when you:
- go onto another person’s property where it is prohibited with notice in writing (can be a sign stating ‘NO ENTRY’);
- do something on another person’s property that is prohibited. Things that are prohibited are listed on a sign; or
- do not leave the property immediately after being told to do so by the owner or a person authorized by the owner.
If you can show that you thought that you had permission to be on the property, then you have a defence to a trespassing charge. It is up to you to convince the court that your belief was reasonable. Permission can be withdrawn at any time and it would be trespassing if you were asked to leave the premises and refused to do so. However, you cannot be asked to leave based on discriminatory reasons (for example, on the basis of race or religion or age).
A police officer or someone who is legally occupying the property can arrest you without a warrant while you are still on the premises if they have reason to believe that you are trespassing. Once you have left the property, a police officer can only arrest you without a warrant if he or she has reason to believe that you were trespassing and they must establish your correct name and address.
If you receive a ticket for trespassing under the Trespass to Property Act and cannot afford to pay the fine, then follow the directions on the back of your ticket to bring it to court and ask to have it reduced to something you can afford to pay – see the Wiki section on Tickets.
Cities and towns in Ontario are private property owners. They have a right to issue trespass orders under the Trespass to Property Act if you illegally occupy the property. For example, Nathan Phillips Square and Metro Hall are the property of the City of Toronto, and officials can exercise their discretion in prohibiting people from being at the Square. You are protected by Ontario’s Human Rights Code. It is unlawful for officials to ask you to leave due to factors such as your age, race, or sexual orientation.
-
What is Squatting?
You are squatting if you live in an unoccupied building or house that you do not own, rent or otherwise have permission from the owner to use. Squatting itself is not an offence but, depending on the circumstances, you could be fined for trespassing or charged with several Criminal Code offences. For example:
- trespassing at night – loitering or prowling near a dwelling house at night
- breaking and entering
- being unlawfully in a dwelling house
- mischief
Trespassing at night – loitering or prowling near a dwelling house at night while on someone else’s property is illegal and you may be criminally charged unless you can show you had a lawful excuse to be there. The trespass must happen between 9pm and 6am. Usually, near a house means on the property or lingering outside a window.
Breaking and entering – when you enter a place through a permanent or temporary opening and you have the intent to commit an offence (e.g. theft). Again, it is up to you to show a lawful excuse if charged. If you are found guilty of breaking and entering a dwelling house, it can be a serious offence. If the place involved is not a dwelling house, then the maximum punishment is either 10 years or 6 months imprisonment, depending on the circumstances.
Unlawfully in a dwelling house: – illegally entering a dwelling house with the intent of committing an offence inside. Again, it is up to you to show that you didn’t intend to commit a crime or that you had a lawful reason to be there.
For each of these offences, the dwelling house must be “kept or occupied”. You may have a defence to the charge if the dwelling house has been abandoned for a long time.
Mischief – intentionally and without lawful excuse, damage property, make property useless or dangerous, interfere with the lawful use of property, or interfere with anyone in their lawful use and enjoyment of property (E.g. drawing graffiti on abandoned buildings, burning another person’s property or using utilities without permission). The maximum punishment for mischief will depend on the value of the property that the mischief related to.
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Being arrested?
If you are being arrested, you should immediately ask to speak to a lawyer or duty counsel. You should not make any statement before you have had the opportunity to speak with a lawyer. You rights when you are placed under arrest will depend on what you are being arrested for, and whether you have been arrested by the police or by a civilian.
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