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Personal Injury

  • Trespass


Can someone file a lawsuit for trespass?

Most know that trespassing is a criminal offense, but it’s important to note a property owner can also sue another party in civil court for trespassing on their property. In 2011, the Texas Supreme Court in Barnes v. Mathis defined trespass to real property as the unauthorized entry upon the land of another, and may occur when one enters — or causes something to enter — another's property. The court further explained that every unauthorized entry upon land of another is a trespass even if no damage is done, or the injury is slight.

Who can sue for trespass?

Anyone who owned or had an interest in the property when the injury occurred can file a trespass lawsuit. Those that own the property, rent the property, or who have permission by the true owner to be on the property have a possessory interest in the property and therefore, can sue. If someone sells their house after a trespass happens, the new owners won’t be able to file a lawsuit because they did not own the property when the injury occurred.

What are the elements of trespass?

Texas has reliably defined a trespass lawsuit to have three elements: 1) entry 2) onto the property of another 3) without the property owner’s consent or authorization [1].

  1. Entry: There must be a physical entry onto the plaintiff’s property by either some person or thing. For example, if someone walks across someone else’s property without permission, they’ve committed a trespass. Similarly, if someone throws a stone (or any object) onto another person’s land, they’ve committed a trespass. A trespass also occurs when the defendant encourages an unauthorized entry to occur. For example, if a person encourages a third party to enter someone else’s property, the person who encouraged the third party has committed a trespass, even though they never entered the land themselves. One important requirement is the defendant’s entry on the land must be voluntary. The Court of Civil Appeals in Houston provided an example of a non-voluntary entry in First City National Bank of Houston v. Japhet. In that case, a driver had a heart attack behind the wheel and lost consciousness, causing his car to drive onto the plaintiff’s property [2]. The court held that the driver did not commit a trespass because he didn’t enter the land voluntarily – he became incapacitated and forces beyond his control caused him to enter the land.
  2. Onto the property of another: The plaintiff must have an ownership interest in the property to file a lawsuit for trespass. The defendant cannot be held responsible for trespassing on land that he/she owns or has a possessory interest in.
  3. Without the property owner’s consent or authorization: The defendant must enter the plaintiff’s land without the owner’s permission or the consent of someone in rightful possession of the property. It would make sense that if the defendant has permission to enter the plaintiff’s land, they can’t also be trespassing. The plaintiff’s lawyer is the one who must prove that the entry was unauthorized.

Intent: The plaintiff’s lawyer only must prove that the defendant intended to enter the property, not that the defendant intended to enter someone else’s property. For example, if someone crosses over and enters someone else’s property without knowing the property belongs to someone else – that person has committed a trespass. It doesn’t matter that the defendant didn’t know who the property belonged to. Under Texas law, even if a person enters onto property with the mistaken, but good faith, belief that they own the property – they’ve committed a trespass and can be sued. This is because there is no good faith defense to trespass under current Texas law. It’s also irrelevant whether the defendant trespasser intended to interfere with the owner’s right of possession, or what degree of force was used to enter the property.

What damages are available for trespass?

  • Nominal and Actual Damages: Texas Courts have held that plaintiffs’ can recover actual damages and nominal damages. When there’s actual damage resulting from the trespass, the plaintiff is entitled to money damages in the amount necessary to compensate them for the injury to their property. If a permanent injury is made on the property, the plaintiff can recover the amount that the property value has been reduced by, or the value of the property if it’s destroyed. If the injury is temporary, the plaintiff can recover the amount necessary to restore the property back to the condition it was in before the trespass. In 2014, the Texas Supreme Court in Gilbert Wheeler v. Enbridge Pipelines defined the difference between a permanent and temporary injury to property. A permanent injury is one that is continuous and constant, whereas a temporary injury is not continuous or likely to occur again – rather a temporary injury is sporadic and unpredictable [3].
  • Exemplary Damages: A plaintiff can recover exemplary damages if the trespass was done willfully or maliciously. The Texas Court of Appeals in Wilen v. Falkenstein stated that a trespass must be initiated by or accompanied with some evil intent or with complete disregard of anyone’s rights in order to receive exemplary damages [4]. It’s important to note that before exemplary damages can be awarded, there must have been some type of actual damage; if the plaintiff was only awarded nominal damages, they cannot also recover exemplary damages.
  • Injunctive Relief: In simple terms, an injunction is an order from the court demanding someone to stop engaging in a certain behavior. A property owner may ask the court to issue an injunction prohibiting the defendant from entering their property in the future. When money damages can’t adequately repair the harm done, an injunction can assist a property owner in preventing a trespass onto their land. Courts are typically inclined to grant injunctions when the plaintiff’s lawyer can prove the injunction is necessary to prevent a threatened irreparable injury to the property.

What are defenses to trespass?

  • Consent: If the defendant has the owner’s permission to enter or the permission of someone in lawful possession of the property, he/she cannot be sued for trespass. Consent can either be provided directly, i.e.- “You have permission to enter my land,” or implied from the plaintiff’s conduct. For example, if a property owner tells her neighbor that he can dock his boat in her backyard, which can only be accessed by entering onto her land, that can be considered implied consent to enter the neighbor’s property. Consent can also be found when there was a preexisting contract between the parties. For example, in 2012 the Texas Court of Appeals explained in Burns v. Seascape Owner’s Association that a contract giving an owner’s association permission to enter a unit to repair and restore the property is considered consent to enter through a preexisting contract.
  • Necessity: A person is protected from liability if they entered onto someone else’s land because it seemed reasonably necessary to prevent serious harm. The serious harm that the person is trying to avoid may either be directed at themselves, a third party, the property owner, or the property of any such persons. For example, if a person enters someone else’s property because they’re fleeing from a ferocious hog chasing them, the courts will likely allow the defendant to use the necessity defense if running across the plaintiff’s property was reasonably necessary to prevent serious harm from the ferocious hog.
  • Partial Privilege: When a person owns an item that is left on someone else’s land, that person has a partial privilege to retrieve their item by entering on the other’s land. The person holding the partial privilege must come onto the land in a reasonable way and at a reasonable time. If the party acts unreasonably when entering the land, they’ll be responsible for any harm that occurred because they acted unreasonably.
  • Statutory and Governmental Privilege: When on the land for a lawful purpose, government officials such as police hold a governmental privilege that allows them to enter someone else’s land without committing a trespass. For example, if a police officer is executing a lawful warrant, he has not committed a trespass because his entry on the land is privileged.

Statute of Limitations: The period that someone has to file a lawsuit for trespass is 2 years. This means the plaintiff’s lawyer must file the lawsuit within 2 years of the trespass occurring.

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