Our office is often involved in litigation between adjoining property owners. A common dispute involves a claim of trespass to land. Some of the disputes are minor, such as your neighbor depositing yard waste onto your property. The norm is the more significant problem, such as the neighbor that shoots fireworks onto your property causing a small brush fire, or the neighbor directing wastewater onto your property. Disputes between neighbors regarding actions involving trespass can frequently be resolved through conversation and negotiation. There are times, however, when the neighbors simply cannot resolve their differences, and resorting to the courts is necessary.
Trespass to Land
Washington law recognizes a claim for trespass to land when an individual intentionally enters someone else’s property without permission or deposits something on another person’s property without permission or invitation. A trespasser can be liable for trespass if he/she intentionally:
- Enters land that is owned or possessed by another;
- Remains on the land; or
- Fails to remove from the other person’s land a thing (such as garbage, waste material, etc.).
Although trespass is commonly referred to as an “intentional tort” under the law, it is not necessary under Washington law that a trespasser actually intends to enter on the land of another person. Intent can be assumed if the trespasser undertakes actions or activities realizing that there is a high probability a trespass will occur and nevertheless disregards that probability. Washington courts also recognize a negligent intrusion may also give rise to a claim against you for trespass.
Proving Trespass to Land Claim
To prove that a defendant is liable for trespass to land, there are four distinct elements that you must demonstrate:
- Intent for Trespass to Land: The intent for trespass to land needs only to be to cause the intrusion on another’s real property. That is, there does not need to be an actual intent of the individual to trespass, but rather, an intent to commit an act or conduct that constitutes the trespass. Therefore, entering the land by mistake can be trespass under Washington law. Trespass also encompasses conduct that causes an object or thing to enter onto someone’s property.
- Property of Another: A trespass claim must be brought by the person that has a legal interest in the property. The entitlement to bring a claim need only be the possessor of the land, not just the owner. For example, a tenant renting a house could bring an action for trespass to land, even though the tenant only has a lease and no title to the property.
- Without Owner’s Consent: Entry onto the property must be unauthorized; that is, the trespasser did not get express or implied permission. There are individuals that often have implied consent for limited entry onto residential properties, such as police or postal carriers. However, implied consent depends upon the circumstances.
- Damages: A viable claim of trespass must involve substantial damages suffered by the property owner.
What Remedies are Available?
A property owner or tenant has a right to be compensated for the damage caused by the trespass. There are a variety of different damages that can be recoverable, including:
- Cost of restoring the property to its pre-damage condition;
- Loss of use of the property;
- Loss of market value of the property;
- Emotional distress or discomfort and annoyance.
There are some limitations on damage awards. If there is a permanent damage to the property, the common measure of damages is the loss of fair market value. If the damage is only temporary in nature, the cost to repair or restore is the more appropriate basis for a damage award. When the cost to repair or restore, however, exceeds the decrease in market value such that the repairs are no longer economically feasible, then the damage award is only for the loss of market value.
There are times when the trespass to land is continuous and unabated. Obtaining a court-ordered injunction precluding the continuing trespass is also an available remedy. Please contact our office for a free initial consultation if you are involved in a situation involving trespass to land.
By: Todd R. Startzel