Legal Aid I : Trespassing

Trespassers will be prosecuted.
…or not.
Sometimes, they’ll get shot !!

Although the above statement is not very likely to happen to you, Urban exploration, is almost always clandestine and made without the authorization of the rightful owners.

As expected then, it is generally prohibited by some decrees, by-laws, or certain municipal regulations, depending on where you do your deed.

289236_460790637294075_287104718_oIf you truly want to know what you’re getting into (and I strongly suggest you do)you’ll need at least a basic familiarity with the laws of access, in whatever jurisdiction you’re undertaking your explorations.

This being the internet thingy, I can only give you broad, world wide applications. Please, do refine your knowledge locally.

Trespassing, is a legal term (duh!) that can refer to a wide variety of offenses, generally (but not always) against property. As it relates to real estate law, it mean entering onto land or a build structure without consent of the owner.

To keep this simple, just know that the act of trespassing can either fall under criminal or civil law.

  • Criminal trespass law is enforced by police, legal officials, park rangers or some sort of accredited civil servant.
  • Civil trespass, on the other hand, requires that the site owner initiates a private enforcement action in court, to collect any damages for which the trespasser may be responsible.

Traditionally, for either type of trespass – criminal or civil – some level of intent is required. Thus, the trespasser must not simply unwittingly traverse another person’s land but must knowingly go onto the property without permission.

25551932_1718347501538376_715080128009453022_nTrespass to land is the most commonly tort associated with the term trespass; it takes the form of “wrongful interference with one’s possessory rights to property”.

Interestingly, depending where you live, it may not be necessary to prove harm to an owner’s protected interest, as liability for unintentional trespass varies in most jurisdictions.

In common law, every unauthorized entry upon someone else’s property, is considered trespass. However, liability for unintentional intrusions generally arises only in cases of grave negligence, as in the case of an intrusion involving a highly dangerous activity.

Trespass to land is one of the oldest torts known in law, regardless of the country.

Think RobynHood and the Sheriff of Nottingham.

Generally it has been described as unauthorized physical intrusion onto the private property of another. But trespass also occurs when a person remains on an individual’s land after permission has been withdrawn (Robynhood and his merry men, again).

Aside from the surface, land can includes the subsoil, airspace and anything permanently attached to the land, such as houses, and other infrastructures. This is literally explained by the legal maxim Quicquid plantatur solo, solo cedit. (look it up: Google is your friend!)

As most laws have been written for the Haves, rather then the Have Nots; trespass can also be actionable PER SE. That means that someone can be sued and found liable for trespassing, even if there is no proof of damage.

Fair ? Perhaps not…But unavoidable in our modern societies…
French philosopher Jean-Jacques Rousseau made that particular point when he wrote: “The first man who, having enclosed a piece of ground, bethought himself of saying ‘This is mine’, and found people simple enough to believe him, was the real founder of civil society.”

289119_460785690627903_852081954_oAll philosophy aside, in a trespass case, beware that if the incident had malicious purposes, such as intimidation of the land owner, punitive damages could very well apply if you get caught.

That being said however, you may be surprise to learn that any person can go onto the private property of another -during daylight hours- if permission to do so, is simply implied. For example, if there is a path up to the front door of a residence and there are no signs warning people to stay off the land, there is implied permission for people to enter the land: this would apply to a postman, a parcel carrier, or a pizza delivery guy. This implied permission can, of course, be revoked instantly by the person in charge of the property. If you are told to leave, you must leave or you could very well be sued for trespass.

Also beware that some right wing leaning courts have held liability for trespass committed negligently. Of course there are exceptions, such as entering land adjoining a road unintentionally (like in a car accident, where you wade off the road, and enter someone’s private field).

In most cases though, Urbexers who enter private places expose themselves to legal risks (generally penetration with or without burglary into the property of others, but know this could go be agravated to accusations of espionage or attack on State Security, depending on your destination).

In many jurisdictions (especially in good old gung-ho USA), trespass while in possession of a firearm -which may include a low-power air weapon by the way- will constitute the much graver crime of armed trespass. Thus my ealier post recommandation to never attempt an Urbex armed with anything more then a Camera.

Even carrying a knive may be considered an armed offense. Full disclosure, I usually carry a multi-pupose swiss army knive in my kit. It is about 5 inches long and can hardly be considered a weapon though. It has a few very usefull litlle tools such as a screwdriver and cisors.

From a legal punishment perspective, abandoned buildings are almost always private property, but if nothing warns you that the place is forbidden (a sign, a fence… ) it is much harder for the justice system to chew your ass, unless of course, you commit some sort of degradations, or if the place contains some sort of confidential data.

15590984_1330915510281579_3149910365765710798_oAs long as you’re not doing anything else illegal and you aren’t trespassing on a sensitive location (Superfund, critical infrastructure, military, etc.), you will probably be let go with a warning if you’re caught. Or at worst, receive a fine.

Most people who engage in Urbexing activities know this, and choose to take the risk. To paraphrase the old saying; don’t do the crime, if you’re ain’t ready to do the fucking time !!

Regardless of your location though, there are probably several defenses to trespass available to you; license, justification by law, Jus Tertii (what did I say about Google being your friend ?) or even necessity.

  1. License is an express or implied permission, given by the owner, to be where you are. Licenses are irrevocable unless there is a flaw in the agreement or it is given by contract. Once revoked, a license-holder obviously becomes a trespasser if he or she remains on the property.
  2. Justification by law, refers to situations in which there is statutory authority permitting a person to go onto private property; like in most countries’ evidence Acts, which allow the police to enter land for the purposes of carrying out an arrest or a search.
  3. Jus Tertii is where the defendant can prove that the land is not possessed by the plaintiff, but by a third party. This defense is unavailable if the plaintiff is a tenant and the defendant a landlord who had no right to give the plaintiff his lease (i.e. an illegal apartment rental, a squat, an unauthorized sublet, etc.)
  4. Finally, necessity is the situation in which it is vital to commit the trespass; think of a shipwrecked crew landing on a private beach. Necessity, however, does not, permit a defendant to enter another’s property when alternatives, though less attractive, exist

When people trespass despite due warning, the practical remedy in civilized places, is to ask them to leave. In the US, it is to shoot them with a gun (automatic, preferably). If they don’t vacate the premise, people are generally entitled to use no more than reasonable force to eject the trespasser (or again in the US, to use a fucking automatic assault riffle, or even a bazooka, on your ass).

What about warning signs, you ask ?
Not only do “Private Property” or “No Trespassing” signs in visible places put trespassers on notice, they convey an intent to keep land private and not as a make-shift easement for others.

So knowledge may (and generally will) be inferred when the owner tells the trespasser not to go on a given land or building, when the property is fenced, or when a “no trespassing” sign is posted.
On the other hand, a trespasser will probably not be prosecuted if the property is open and if the trespasser’s conduct did not substantially interfere with the owner’s use of the property.

It goes without saying the above is only true if the trespasser immediatly leaves upon request.

To ease the burden of proof, some will consider installing video cameras in the area. The presence of cameras themselves can be a deterrent to some. A litlle hint; if the place is completly dilapidated, chances are there is no electricity. And if there is no electricity, the cameras are often fake or not connected.

Wrong side of the fence

All this being said; please be aware however, that typical civilized responses are NOT guaranteed!

If there is only one thing you remember from my badly written prose, it should be this: if you plan to engage in Urbexing and trespass on a regular basis, you will eventually get caught, regardless of how careful you are.

Last but not least: you can NOT plead ignorance (even if you are a dumbass, which would explain partaking in such a dubious activity as Urban Exploration).

You have to accept that you were breaking the law when you chose to photograph a forbidden location, even if, at the time, you were ignorant to the possibility of punishment.

So remember this, kids: if you do not want the burden of a criminal record, your decision to trespass could be a life altering one !!

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