TRESPASS LAW IN NEW YORK - Riverkeeper



Trespass Law in New York*

*The information provided in this section of Riverkeeper’s Citizen’s Toolbox is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of New York jurisprudence and may not reflect current legal developments or statutory changes in this jurisdiction and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this Citizens’ Toolbox does not mean you have established an attorney-client relationship with attorneys at Riverkeeper. Readers of the Citizens’ Toolbox should not act upon any information contained in the web site without first seeking the advice of legal counsel.

Introduction

While Riverkeeper encourages its members and citizens to get involved and participate in the many available opportunities to protect our natural resources in the Hudson River Valley and New York City Drinking Water Supply Watershed, the purpose of this portion of the Citizens’ Toolbox is to make you aware of the possible consequences of entering the property of others. Although what someone is doing on their property may be illegal, such as the unpermitted filling of wetlands, this does not diminish their property rights, and citizens should understand the law of trespass in New York before they investigate. In New York, the entrance onto the property of another may result in two kinds of trespass: criminal and civil.

Criminal Trespass

Under § 140.05 of the New York Penal Law, “[a] person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises.”[1] The law states that “[a] person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists.[2] Under the law, “[a] person ‘enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so.”[3] Trespass is a violation, meaning it is an offense . . . for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed.”[4]

The law provides an exception to criminal trespass in certain circumstances: “A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privilege unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless such notice is given by posting in a conspicuous manner.”[5]

Based on the above, in order to prove that someone is guilty of criminal trespass, the prosecution must: (1) prove that the defendant knowingly entered or remained unlawfully in or upon land, and (2) negate the exception for unimproved or apparently unused land.[6]

It must be proved that the person charged with trespass “‘knowingly’ entered the premises without license and privilege and, therefore, a person who enters upon premises accidentally or who honestly believes that he is licensed or privileged to enter, is not guilty of any degree of criminal trespass.”[7] Therefore, a person who enters land with permission, or believing she has permission to do so, or by accident, is not guilty of criminal trespass.

A person also is not guilty of criminal trespass if she enters unimproved and apparently unused land that is not enclosed unless she has received word from the owner that she does not have permission to enter, or it is posted with “No Trespassing” signs. The New York Court of Appeals has held that “[n]o prosecution may be brought for trespass in violation of section 140.05 of the penal law when the intruder ‘enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders,’ unless the prosecution can show that notice against trespass was personally communicated to the intruder by the owner of such land or other authorized person, or unless such notice was given by posting in a conspicuous manner.”[8] New York Courts have rarely addressed what constitutes “unimproved and apparently unused” land, but the Court of Appeals held that the prosecution failed to negate the statutory exception where there were no signs on the land, it was neither fenced nor enclosed in a manner to exclude intruders, there were no residences within a mile, and it was “unimproved and apparently unused land.”[9]

Civil Trespass

In addition to criminal trespass, a person who enters another’s property may be liable to the property owner for civil trespass, for which the owner can sue in a civil case. In New York, “the essence of trespass is the invasion of a person’s interest in the exclusive possession of land.”[10] “Liability for civil trespass requires the factfinder to consider whether the person, without justification or permission, either intentionally entered upon another’s property, or, if entry was permitted, that the person refused ‘to leave after permission to remain ha[d] been withdrawn.’”[11] A person who asks or hires another to enter land, even though he does not personally do so himself, also is liable for trespass.[12] Therefore, in a civil case the jury will find trespass occurred if a person entered, or hired or asked someone else to enter, the land of another. Unlike criminal trespass, a person does not have to “knowingly” act for liability to attach; the mere act of entering another’s land without permission or justification constitutes trespass.

Once liability is established in a civil trespass suit, the property owner may be entitled to damages. “‘Damages’ means a sum of money awarded to another person injured by the [intentional act] of another.”[13] In the case of trespass, a plaintiff may be awarded nominal, compensatory and/or punitive damages.

Nominal damages are a trivial sum of money awarded to a litigant who has established a cause of action, but has not established that he is entitled to compensatory damages.”[14] Some damage without actual proof of injury is always presumed from trespass to land.[15] “An entry into the land of another constitutes a trespass even though the damages are slight or there is no damage, and gives rise to an action for nominal damages. Even the most innocent of trespassers is liable for nominal damages as a minimum.”[16] In one case, the court awarded $1 in nominal damages.[17]

“‘Compensatory damages’ are the damages awarded to a person as compensation, indemnity or restitution for harm sustained by him.”[18] A landowner may be able to collect compensatory damages for the costs of repairing any harm to the property as a direct result of trespass. For example, when trespassers removed ground cover, dunes and shrubbery, a court awarded compensatory damages in the amount necessary to restore shrubs and beach grass and the costs of bulkheading the dune and for fill and topsoil.[19] A court may also award compensatory damages for the diminution in value of the property from physical damage that cannot be repaired.[20]

Punitive damages for trespass are designed to discourage interference with property rights.[21] They will only be awarded if the plaintiff proves (1) actual malice which involves an intentional wrongdoing, or (2) such conduct as may be tantamount to a wanton and willful or a reckless disregard of plaintiffs’ rights.[22] In the above case where compensatory damages were awarded, the court held that the defendants’ refusal to carry out restoration despite their guilty pleas for violation of Town Ordinances for the destruction of shrubbery and continuation with the construction project for which they carried out the landclearing was tantamount to reckless disregard of plaintiffs’ rights and awarded $10,000 in punitive damages.

-----------------------

[1] N.Y. Penal Law § 140.05.

[2] N.Y. Penal Law § 15.05(2) (emphasis added).

[3] N.Y. Penal Law § 140.00(5) (emphasis added).

[4] N. Y. Penal Law § 140.05; Id. § 10.00(3) (emphasis added).

[5] Id.

[6] See People v. Dailey, 69 Misc. 2d 691, 693 (County Ct. of N.Y. Saratoga County 1972).

[7] People v. Basch, 365 N.Y.S.2d 836 (1975).

[8] Id.

[9] Dailey, 69 Misc.2d at 693.

[10] Zimmerman v. Carmack, 292 AD2d 601, 602 (2d Dept 2002).

[11] Long Island Gynecological Services v. Murphy, 298 AD2d 504 (2d Dept 2002).

[12] “One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so.” Restatement 2d of Torts, § 158. See also Restatement 2d of Torts, § 158 Comment j. Causing Entry of Third Person: “If, by any act of his, the actor intentionally causes a third person to enter land, he is as fully liable as though he himself enters. Thus, if the actor has commanded or requested a third person to enter land in the possession of another, the actor is responsible for the third person’s entry if it be a trespass.”

[13] Restatement 2d of Torts, § 902.

[14] Restatement 2d of Torts, § 907.

[15] See Butler v. Ratner, 173 Misc. 2d 783, 785 (City Ct of N.Y., New Rochelle 1997).

[16] Id. at 786, citing 104 NY Jur 2d, Trespass, § 36 at 484.

[17] See id.

[18] Restatement 2d of Torts, § 903.

[19] See Malerba v. Warren, 108 Misc. 2d 785, 789 (N.Y. Sup. Ct., Suffolk County 1981).

[20] See id.

[21] See Costlow v. Cusimano, 34 AD2d 196, 201 (4th Dept. 1970)

[22] See Malerba, 108 Misc.2d at 789.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download