Common Trespass Issues in Residential Properties

By: Chase Cooke

     Trespass laws vary on a state-by-state basis, however, they typically share common requirements and there are overarching issues that arise when these laws are applied to the world of residential property ownership/management.

State Trespass Laws:

This article will focus on the States listed below and their respective statutes:

• • Georgia
    • GA Code § 16-7-21
  • North Carolina
    • § 14-159.13 First Degree Trespass
    • § 14-159.13 Second Degree Trespass
      • This article will focus on Second Degree Trespass, as that is the most relevant to the discussion of common trespass issues arising at residential properties.
  • South Carolina
    • §16-11-620

While these state statutes have some variances, they do have the following common elements:

1.     Lack of authorization or permission to enter the premises;

2.     Entering onto or refusing to leave;

3.     After being given notice;

4.     By owner, lawful occupant or other authorized person

Notice

     As mentioned above, Georgia, North Carolina and South Carolina, all require that the individual has been given notice to be considered a Trespasser. If an individual is given Trespass notice and refuses to leave, or leaves but later returns to the premises, they become a Trespasser. It is not until they receive this notice that they are considered a trespasser. While there is no requirement that this notice be in writing, it is always best to give notice in writing so there is a record in a situation where the individual disregards the notice.

Competing Rights

     One aspect of these state laws that creates competing rights, is that while a lawful occupant can put an individual on Trespass Notice, the lawful occupant can also give the individual permission or authorization to be there. The owner of the premises can put an individual on Trespass, however, that individual can have a legitimate need or right to visit one of the residents living in the community. For example, an individual’s child may reside with a family member that lives in the community. In these scenarios, Courts have long held that if the individual is there under invitation of a legal occupant or in pursuit of a legal right, that individual may pass through the common areas of the premises in order to get to the legal occupant’s residence.  This style of thinking is similar to that of an Ingress/Egress easement, which grants limited access to the property for a specific purpose. For example, if a utilities service needs to enter the property to perform maintenance on equipment, etc. In the residential housing industry, this would mean the individual that needed access to the premises in order to pick their child up, would be permitted to enter the common areas of the property, for the sole purpose of passing through to get to their child.

Voiding the Trespass Notice

     In the scenario where a lawful occupant or resident puts an individual on Trespass Notice and then later invites that individual back on to the premises, the Trespass Notice is voided. This is tricky to navigate because if the lawful occupant has invited the individual onto the premises and ownership seeks police involvement to remove the individual, it could potentially result in that individual bringing §1983 claims against them. In a nutshell, §1983 claims arise in situations where a plaintiff alleges that conduct committed by a person or entity acting under the color of State Law deprived the plaintiff of a constitutional right.  In the scenario where a Trespass Notice given to an individual has been voided, if ownership gets law enforcement to remove the resident, it could be argued that the officers were acting under the color of State Law as an agent of ownership.  These claims will vary on a case-by-case basis and will be extremely fact specific, however it is something to be mindful of. Also, when there is no actual crime being committed by the individual, law enforcement tends to treat the situation as a civil issue.  While this may not be directly tied to the prevention of §1983 claims being filed against law enforcement officers, it may help explain why officers are reluctant to remove individuals in situations where there is no actual crime or risk of safety occurring at that moment. It is understandable that law enforcement would be wary of removing an individual from the premises when considering all of the competing rights they have to juggle when making the decision, however this does not negate the State Laws providing for the removal of an individual who has been put on Trespass Notice and disregards said notice without any legal excuse.  This is why it is important to give Trespass Notice in writing and to have the individual sign said document if possible, to assist law enforcement in navigating these competing rights.