This article defines the activities which constitute trespasses on real estate and lists the available remedies.
Ejectment, liabilities and title risks
A trespass is any wrongful and unauthorized entry onto real estate in the possession of another. Thus, a trespass is an interference with another’s possession of real estate, as distinct from any interference with title or ownership interest. [Brenner v. Haley (1960) 185 CA2d 183]
The person entitled to stop a wrongful and unauthorized entry is not necessarily the fee simple owner or the owner’s agent, but the person in possession of the property — who could be the fee owner, a tenant or even a person in wrongful possession. [Allen v. McMillion (1978) 82 CA3d 211]
A fee owner can even trespass on the property he owns when another person is in legal possession of it.
For instance, a landlord who enters a leased premises without the tenant’s permission (except after giving proper notice, or in an emergency) is liable for a trespass, called forcible detainer. A landlord has no possessory rights in the property during the term of a lease or rental agreement — he holds only a reversionary interest.
Privileged entries protect landlords and others against liability for trespass, such as entering property possessed by another in case of an emergency, to abate a nuisance or to serve legal papers.
For instance, a property owner is authorized by statute to enter a neighbor’s property to abate a nuisance which affects him, such as a fire hazard. The owner who enters his neighbor’s property must do so in a peaceable manner and must first give notice. [Calif. Civil Code §§3502; 3503]
When the entry is not privileged, it is a trespass. A trespasser incurs civil liability for the monetary amount of any damage or injury he causes to the occupant’s person, real estate or personal property.
The occupant of the property, who might be other than the fee owner, can recover money damages for his injuries resulting from a trespass. Conversely, damage to the fee owner’s property caused by a person who is in rightful possession, such as a tenant, is not a trespass, it is waste. [Smith v. Cap Concrete (1982) 133 CA3d 769]
Editor’s note — Although the test for who can stop a trespass or recover money losses is possession, not ownership, the term “owner” will be used for convenience throughout this article — bearing in mind that the “owner” seeking to stop a trespass could also be a tenant, licensee, transient guest or other occupant.
An owner may bring an action for trespass even when a trespasser has caused no actual injury by his presence on the owner’s property. However, if no injury has occurred, the owner recovers only nominal money damages from the trespasser — such as one dollar. Nominal money damages are awarded when a wrong has been committed under the law, but has not resulted in a money loss. [Staples v. Hoefke (1987) 189 CA3d 1397]
To recover actual money damages for a trespass, the owner must sustain an actual loss. Actual money damages recoverable for a trespass are based on:
· injury to the real estate;
· lost use of the property;
· personal injury; and
· injury to the occupant’s personal property.
A trespass does not require the trespasser’s direct physical presence on the property. A trespass can also result from an indirect entry into another’s property — sometimes called trespass on the case.
For instance, one can be liable on a trespass for damages caused by activities such as:
· depositing dirt or debris on another’s property [Armitage v. Decker (1990) 218 CA3d 887];
· leaving toxic waste on another’s property [Mangini v. Aerojet-General Corporation (1991) 230 CA3d 1125];
· leaving personal property on real estate belonging to another [Herond v. Bonsall (1943) 60 CA2d 152];
· diverting a river or surface waters across another’s property [Salstrom v. Orleans Bar Gold Mining Co. (1908) 153 C 551];
· starting a fire and negligently allowing the fire to move onto a neighbor’s property [Elton v. Anheuser-Busch Beverage Group, Inc. (1996) 50 CA4th 1301]; or
· allowing one’s animals to wander across another’s property. [Montezuma Improvement Co. v. Simmerly (1919) 181 C 722]
An owner who is completely deprived of the use of his property by a trespasser is entitled to recover the rental value for the use of the property during the period of the trespass. [CC §3334(b)]
For example, a tenant who leases property for the purpose of running a restaurant leaves restaurant equipment on the premises after the lease expires. Due to the presence of the equipment, the owner is unable to use the property, and recovers from the former tenant the rental value of the property until the equipment is removed. [Herond, supra]
The amount of money damages recoverable for injuries to the real estate caused by a trespasser can be based on either lost property value or the cost of restoring the property to its condition prior to the trespass.
Normally, the owner of the damaged real estate will be awarded the lesser of the two amounts. However, the owner is awarded the damages most appropriate to cover his loss. [Armitage, supra]
The most straightforward situation is when a trespasser causes damage which diminishes the value of the property, and the owner recovers the amount of the lost property value. For instance, an owner recovers the lost value of his property from a mining corporation which diverts a river across the owner’s property, washing away soil and crops. [Salstrom, supra]
However, many trespasses involve more than a simple loss in property value. An owner is not required to accept any changes to his property caused by a trespasser without his consent, and may recover costs of restoration regardless of any change in the value of the property.
For example, a neighbor builds a road across an owner’s property without the owner’s consent, destroying a number of trees in the process. The road increases the value of the owner’s property, but the owner prefers the trees for their aesthetic value. Thus, the owner is able to recover the reasonable cost of restoring the property to its condition before the trespass — i.e., replacing the trees. [Heninger v. Dunn (1980) 101 CA3d 858]
Reasonable means the restoration costs must be balanced against the damage actually suffered by the owner. In Heninger, the owner did not recover the cost of restoring the property to its exact condition before the trespass, since the cost to replace trees of the same growth would have been several hundred thousand dollars — more than the value of the real estate. The reasonable cost of restoration was limited to new planting which would grow over time.
Also, for an owner to recover money from a trespasser for the restoration of a property to its pre-trespass condition, money must actually have been spent on restoration. [Heninger, supra]
Aside from the money losses, a trespasser has liability exposure for punitive damages if the trespass and resulting property damage is intentional and malicious. [CC §3294]
Besides recovering money losses, an owner can obtain a court ordered injunction against a continuing trespasser.
A single isolated trespass is not a basis for an injunction. However, if seeking money damages would not prevent a trespass from being repeated in the future, the rightful occupant can obtain an injunction. [Standard Lumber Co. v. Madary’s Planing Mill (1921) 54 CA 107]
Trespass on livestock land
An owner of real estate attempts a controlled burn of brush on his property.
Due to the owner’s negligence, the fire spreads onto a neighboring property which is used for raising livestock. The fire damages plant life on the neighboring property.
The owner is found liable for money losses sustained by the neighbor ue to the fire.
The neighbor claims he is entitled to attorney fees since the fire was a trespass. The owner claims attorney fees are not recoverable since the fire was not a trespass.
However, the neighbor whose property is used to raise livestock and was damaged by the escaping fire is entitled to attorney fees. The fire, which was started by the owner and moved onto the neighbor’s property, constitutes a trespass. [Elton, supra]
When a trespass occurs on real estate which is under cultivation or is intended or used to raiselivestock, the owner of the real estate is entitled to attorney fees in addition to the damages caused by the trespass. [Calif. Code of Civil Procedure §1021.9]
Now consider a property owner’s residence which is adjacent to a public utility easement. Powerlines which emit electromagnetic fields (EMFs) are located on the easement.
The owner claims the utility company is liable for trespass since the EMFs are a physical invasion of the owner’s property which renders it uninhabitable and has diminished the property’s value.
Is the utility company liable for trespassing on the owner’s property due to electromagnetic fields?
No! The utility company is not liable for trespass since the EMFs are an intangible intrusion which do not physically damage the property or its occupants. [San Diego Gas and Electric Company v. Superior Court (1996) 13 C4th 893]
In addition to the liability for property damages, a trespasser may also incur criminal liability. Trespassing becomes a misdemeanor when the trespasser:
· refuses to leave the property when requested by the owner, the owner’s agent, a person in lawful possession of the property or a law enforcement officer acting on request from the person entitled to possession [Calif. Penal Code §602(k),(n)];
· enters and occupies the property without the rightful occupant’s consent [Pen C §602(l)];
· refuses to leave a transient occupancy establishment (hotel/motel/vacation property) on the request of the owner or manager [Pen C §602(r)];
· enters a private dwelling [Pen C §602.5]; or
· enters industrial property (such as an oil field, a gas or electricity plant or a railroad yard) where posted signs forbid trespassing. [Pen C §554]
Merely entering another’s property (except for a private residence or posted industrial property) is not a crime.
For instance, a group of individuals who camped for one night on an owner’s property without his permission are arrested for trespassing. The owner claims the campers have committed a misdemeanor since they occupied the property without his consent.
However, the mere transient occupancy of a property for a campsite does not constitute occupation of the property for a criminal trespass. Criminal occupancy requires an ongoing continuing possession. Thus, the campers committed no crime. [People v. Wilkinson (1967) 248 CA2d Supp. 906]
The owner’s first recourse against a trespasser is simply to request him to leave. If the trespasser does not leave when requested, he commits a misdemeanor. [Pen C §602(n)]
However, the owner himself may not forcibly eject the trespasser. To discourage disturbances of the peace caused by “self- help,” California law allows both tenants and trespassers to recover damages from the landlord or property owner for forcible entry and detainer — a forcible interference with peaceful possession of the property, even if the possession is wrongful. [CCP §§1159; 1161; 1172]
An owner may only recover possession of his property from a trespasser through a court action except when the trespasser is a transient occupant. The kind of action brought to recover property depends on the type of possession held in the property.
For instance, the action to recover possession of property from a tenant in default on his lease obligations is an unlawful detainer (UD) action. In the case of a trespasser occupying property, the legal remedy is an action for ejectment.
Ejectment is similar to a UD action, but with less stringent proof requirements. The trespasser, unlike the tenant in a UD action, never had legal possession of the property.
In an action to eject a trespasser, the owner (or other occupant) must prove he has a superior right to possession of the property. The owner may then obtain a court order for the removal of trespassers from his property, called a writ of possession. The court order is carried out by the sheriff — not the owner. [CCP §715.010]
In cases of trespass on public lands, the state stands in the role of the owner or occupant of the property for the purposes of ejecting trespassers and recovering money losses. [Calif. Public Resources Code §§6224.1; 6302; 7992]
Guests who have checked into a hotel, motel or similar establishment are called transient occupants. The owner or operator of the establishment is called an innkeeper.
A transient occupant who refuses to leave the premises when requested to do so by the innkeeper is guilty of a misdemeanor for lodging in the hotel without permission. A transient occupant is also committing a misdemeanor if he obtains accommodations and then refuses to pay and leave the premises at check-out time. [Pen C §§602(r); 647]
In both cases the innkeeper may call the police for assistance in removing a person who has become a trespasser.
Once the officer arrives, if the transient occupant continues to refuse to leave the property, the occupant is committing a crime in the presence of the officer. The officer then has the authority to arrest the occupant as a trespasser and remove him from the premises. [Pen C §836(a)(1)]
Even if an owner is not troubled by trespassers who actually use his property, he must be concerned with:
· liability for injuries to trespassers occurring on the property; and
· the risk of losing property rights through prescription and adverse possession.
Every property owner must take reasonable precautions to prevent injuries to others on his property and is liable for injuries to others caused by unsafe conditions on the property. [CC §1714]
The ownership liability applies whether the injured person is a trespasser or a guest on the owner’s property. [Rowland v. Christian (1968) 69 C2d 108]
An exception to ownership liability applies to property owners who permit others to use their property for recreational purposes. A property owner is not liable for injuries to persons using his property for recreational purposes unless he:
· invites the users onto his property, rather than merely permits use;
· charges consideration for entry; or
· intentionally or maliciously fails to warn or protect against a known hazardous condition. [CC §846]
Owners frequently seek to use recreational activity immunity as a defense against liability for injuries occurring on their property. For instance, a child is injured while riding a bicycle on a construction site. The owner of the property claims he is exempt from liability for the injury since the child was using the property for recreational purposes.
However, to enjoy immunity from liability for injuries to recreational users, an owner must prove his property is suitable for recreational use. Since a construction site is not suitable for recreational purposes, the owner is not immune from liability. [Paige v. North Oaks Partners (1982) 134 CA3d 860]
Prescription out of trespass
Prescription is a process for acquiring property rights in another’s property, such as an easement, through adverse use hostile to the rights of the owner.
An adverse user of real estate, hostile to the owner’s rights, is a trespasser. Thus, a danger exists in allowing a trespass.
If allowed to continue long enough, a trespass matures into a property right through prescription. The owner must take steps to avoid the risk of a trespasser establishing permanent prescriptive rights to use his property.
One easy solution is for the owner to grant the trespasser a revocable right to use his property. When an owner gives permission for the use of his property, the use is not adverse, and thus prescription cannot be established.
Also, the owner can post signs on his property stating the right to pass is by permission and subject to revocation and the control of the owner. No prescriptive easement can be established based on the period of time after the revocable permission signs are posted. [CC §1008]
Finally, to best protect his property rights, the owner should also record a notice stating permission to use his property is revocable. [CC §813]
Of course, the owner may not wish to permit trespassers to use his property. A person seeking to establish prescriptive rights in an owner’s property would qualify as a continuing trespasser, and thus the owner could obtain an injunction against the trespasser to guard against losing property rights through prescription.
A trespasser who occupies property without the consent of the owner can be ejected by a court order at any time, and can also be charged with a misdemeanor. [Pen C §602]
However, a trespasser can acquire title to the property by adverse possession if he can manage to maintain exclusive possession of the property for a period of five years. To establish title by adverse possession, the trespasser’s possession must be open and known to the owner, and the trespasser must pay all property taxes. [Gilardi v. Hallam (1981) 30 C3d 317]
Adverse possession differs from prescription since it is a claim for title to the real estate. Conversely, prescription merely involves a right to use another’s property. As with prescription, one safeguard against adverse possession is to grant the occupant permission to use the property.
However, merely granting permission will not prevent adverse possession in all cases. For instance, the possession of the property might be based on color of title, meaning the occupant has a deed which is defective for some reason (such as forgery) and a good faith belief he owns the property. Granting permission will not affect a claim for adverse possession based on color of title.
The safest remedy against a trespasser seeking to establish adverse possession is an action for ejectment. Where the trespasser has color of title, a quiet title action is required as well to clear title of the cloud created by the color of title.