Intentional torts - Trespass to land

Learning Outcomes

This article explains trespass to land for MBE purposes, including:

• Clarifying the doctrinal definition of trespass to land and situating it within the broader framework of intentional torts involving real property.
• Detailing each required element—act, physical invasion, intent, and causation—and illustrating how minor factual variations can satisfy or defeat those elements on MBE-style questions.
• Distinguishing trespass from nuisance and from trespass to chattels and conversion, with emphasis on physical versus intangible invasions and land versus personal property harms.
• Analyzing whose interests are protected by trespass (possessors, owners, tenants, adverse possessors, easement holders) and identifying proper plaintiffs and defendants in multi-party fact patterns.
• Examining common defenses and privileges—consent, private and public necessity, and legal authority—and explaining how they affect liability and available remedies.
• Highlighting the role of nominal, compensatory, punitive, and injunctive relief in trespass actions, including how continuing trespass is tested and remedied on the exam.
• Exposing frequent MBE traps, such as confusing intent to enter with intent to trespass, treating mistake as a defense, or misclassifying intangible invasions as trespass rather than nuisance.
• Providing structured checklists, key term definitions, and worked examples to support rapid issue-spotting, rule recall, and answer elimination under timed exam conditions.

MBE Syllabus

For the MBE, you are required to understand intentional torts involving harms to land, with a focus on the following syllabus points:

• The definition and elements of trespass to land
• The intent required for liability (and why “intent to trespass” is unnecessary)
• What counts as a physical invasion (including direct vs. indirect entry)
• Who qualifies as a proper plaintiff (possessory interests)
• Defenses: consent, public and private necessity, and legal authority
• How trespass to land differs from private and public nuisance
• Relationship to other intentional torts to property (trespass to chattels, conversion)

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT required to establish trespass to land?
   1. The defendant intended to enter the land.
   2. The defendant caused a physical invasion.
   3. The plaintiff suffered actual damage.
   4. The plaintiff was in possession of the land.
2. A person throws a rock onto another’s property, not realizing it would land there. Is this trespass?
   1. Yes, because intent to enter is enough.
   2. Yes, because intent to trespass is required.
   3. No, because the person did not intend to trespass.
   4. No, because there was no physical invasion.
3. Which is a valid defense to trespass to land?
   1. Mistake as to ownership.
   2. Consent by the land possessor.
   3. Lack of intent to trespass.
   4. The land was vacant.

Introduction

Trespass to land is a classic intentional tort tested regularly on the MBE. It protects the right to exclusive possession of real property. Liability arises when a person intentionally causes a physical invasion of land possessed by another, regardless of whether the land is harmed.

Key Term: Trespass to Land
An intentional tort in which the defendant causes a physical invasion of land possessed by another, without permission or other legal justification. Actual harm to the land is not required.

Trespass is “actionable per se”: the wrongful entry itself is enough to support liability and at least nominal damages. Many MBE questions turn on subtle issues of intent (especially mistake) or on whether the invasion is “physical” (trespass) or merely interferes with use and enjoyment (nuisance).

Elements of Trespass to Land

Trespass to land requires three elements:

1. An act causing a physical invasion of land.
2. Intent to enter or cause the invasion.
3. Causation.

Actual damage is not required; nominal damages are available simply for the violation of the possessory right.

The act can be the defendant’s own entry, causing a third person to enter, or causing an object or substance to enter, rest on, or remain on another’s land.

Key Term: Physical Invasion
Any tangible entry onto, above, or below the surface of land—including by persons, animals, or objects—that encroaches on another’s possessory interest.

Causation is usually straightforward: the defendant’s act (walking, driving, throwing, dumping, placing an object) leads to the invasion.

Intent Requirement

The intent element is frequently tested and easily misunderstood. The defendant must intend the act that results in entry or invasion. The defendant does not need to:

• Intend to commit a trespass
• Intend to cause harm
• Know that the land belongs to someone else

Key Term: Intent (Trespass)
The purpose to enter or cause a physical invasion of land, or knowledge with substantial certainty that an entry or invasion will occur. Intent to violate rights or cause harm is unnecessary.

Key points:

• Mistake is not a defense. A good-faith but mistaken belief that the land is the defendant’s, or that there is a right of way, does not negate intent.
• Involuntary entry is not intentional. Being pushed onto land by another or losing control of a car in a sudden medical emergency does not satisfy intent, though negligence might.
• Children and those with mental impairment can form the requisite intent and can be liable for trespass if they intend the act of entry.

Exam Warning

On the MBE, do not confuse intent to trespass with intent to enter. If the defendant voluntarily walks, drives, or throws something and it ends up on the plaintiff’s land, the intent element is satisfied—even if the defendant honestly believed the land was theirs.

Physical Invasion

A physical invasion occurs when the defendant:

• Enters the land personally (walking across a field, driving onto a driveway)
• Causes another person to enter (ordering a delivery onto land without permission)
• Causes an object or substance to enter or remain (throwing debris, placing a structure, parking a car, or leaving equipment)

Key Term: Continuing Trespass
A trespass that arises when the defendant’s object, structure, or condition remains on another’s land without permission, creating an ongoing invasion until it is removed.

The invasion must be tangible:

• Tangible particles (e.g., rocks, dirt, pesticide spray, concrete dust) can constitute a trespass if they physically settle on the land.
• Purely intangible intrusions (noise, light, vibration, odors) are typically analyzed as nuisance, not trespass, unless accompanied by physical particulates.

Trespass covers the surface of the land, a reasonable portion of the airspace above (e.g., low-flying crane swings a boom over the property), and the subsurface (e.g., tunneling or drilling beneath a neighbor’s land).

Exam Warning

If the problem describes noise, smells, or bright lights alone, think nuisance, not trespass. If dust, smoke particles, or chemicals physically land on the property, trespass may also apply.

Who May Sue

Trespass protects possessory interests. The proper plaintiff is anyone in actual or constructive possession of the land:

• Tenants in possession can sue trespassers; their right to exclusive possession arises from the lease.
• Landlords out of possession typically cannot sue for trespass during the lease term, unless the trespass causes permanent injury to the reversion.
• Owners who are themselves in possession can sue.
• Persons in adverse possession can sue strangers for trespass, because they have actual possession.
• Holders of certain nonpossessory interests (like easements) may sue for interference with their easement, sometimes characterized as trespass to land or as a separate easement interference claim.

Key Term: Possession (Land)
Actual or constructive control of land, sufficient to exclude others. The person with the right to exclude (e.g., tenant in possession) is the primary plaintiff in trespass.

Who May Be Liable

Any person who intentionally causes a physical invasion can be liable:

• Individuals who personally enter or cause entry
• Employers, through respondeat superior, for employees’ trespasses within the scope of employment
• Those who instruct or induce others to enter (even if they do not enter themselves)

Children, intoxicated persons, and those with diminished mental capacity can be liable if they intended the act of entry.

Damages

No proof of actual harm is required. Once trespass is established:

• Nominal damages are available for every unauthorized entry.
• Compensatory damages are available for physical harm to the land, crops, or structures, or for loss of use.
• Injunctive relief may be available for a continuing trespass or repeated entries.
• Punitive damages may be awarded for malicious or reckless trespass (e.g., deliberate destruction, refusal to leave after notice).

Defenses to Trespass to Land

Common privileges and defenses include:

• Consent
• Necessity (private or public)
• Legal authority (including privilege of arrest or official inspection)

Mistake as to ownership or boundaries is not a defense; it goes only to intent, which is satisfied by the intentional act of entry.

Key Term: Consent (Trespass)
Permission by the person in possession of land for another to enter or remain on the land; valid consent negates the “wrongful” element of trespass.

Consent

Consent can be:

• Express (e.g., “you may come onto my property”)
• Implied from conduct, custom, or surrounding circumstances (e.g., ordinary social or business invitee entry)

Limits:

• Scope matters. Entry beyond the area or purposes consented to becomes trespass (e.g., entering a store to shop vs. to commit vandalism).
• Consent obtained by fraud or duress may be ineffective.
• Consent can be revoked; remaining after revocation becomes trespass.

Necessity

Necessity justifies entry onto another’s land to avoid a greater harm.

Key Term: Necessity (Trespass)
A privilege allowing entry onto land (or interference with chattels) to prevent a greater harm. Public necessity fully excuses liability; private necessity is a qualified privilege requiring payment for actual damage.

Key Term: Private Necessity
A qualified privilege to enter or remain on another’s land when reasonably necessary to protect the defendant or the defendant’s property (or a small number of others) from serious harm. The defendant must pay for actual damage caused.

Key Term: Public Necessity
A complete privilege to enter or even destroy private property when reasonably necessary to avert a serious threat to the community at large or a substantial number of persons. No compensation is required.

Private necessity:

• Justifies entry to protect the defendant’s own person or property (or a small number of others) from serious harm (e.g., mooring a boat at a private dock during a sudden storm).
• The entry is privileged; the landowner may not use force to expel the defendant while the necessity continues.
• The defendant remains liable for actual damage caused to the property (e.g., damage to the dock), but not for the mere entry.

Public necessity:

• Applies when entry or destruction is needed to protect the public from a grave danger (e.g., destroying a building to create a firebreak).
• The defendant (often a public official) is not liable for the property damage, provided the action was reasonably necessary under the circumstances.

Worked Example 1.3

During a sudden windstorm, a boater reasonably fears her small boat will capsize. She ties it to a private pier clearly marked “No Trespassing.” The pier owner angrily unties the boat and pushes it away. The boat is destroyed. The boater sues the owner.

Answer:
The boater had a privilege of private necessity to use the pier to protect her property. The owner had no right to eject the boat by force while the necessity continued. By pushing the boat away, the owner became liable for the boat’s loss. The boater owes the owner nothing, because any damage the boat might have caused to the pier did not occur.

Legal Authority

Statutes or common law may create privileges to enter land:

• Police executing a valid warrant
• Officers making a lawful arrest
• Certain officials conducting authorized inspections or emergency responses

These entries are not trespasses if within the scope of the authority. Exceeding that scope can give rise to liability.

Distinguishing Trespass from Nuisance

Trespass and nuisance both protect interests in land but in different ways.

Key Term: Nuisance
A tort involving substantial and unreasonable interference with another’s use or enjoyment of land, often through intangible intrusions such as noise, odors, or light, and not necessarily involving a physical entry.

Key distinctions:

• Trespass always involves a physical invasion of land (however slight).
• Nuisance focuses on interference with use and enjoyment, often via intangible invasions (noise, smells, vibrations, light) or ongoing activities.
• A single entry is classic trespass; a long-term pattern of smoke, noise, or odors is classic nuisance. Some factual patterns (e.g., drifting chemical dust) can support both claims.

Trespass and Other Property Torts

Trespass to land is distinct from the intentional torts involving chattels:

• Trespass to chattels: intentional interference with another’s use or possession of personal property, causing actual harm or substantial loss of use.
• Conversion: serious interference with another’s chattel, justifying full-value damages.

Trespass to land protects the interest in exclusive possession of real property. Trespass to chattels and conversion protect possessory and ownership interests in personal property.

Worked Example 1.1

A hiker mistakenly believes a field is public land and walks across it. The field is privately owned and posted with "No Trespassing" signs. The owner sues for trespass. Is the hiker liable?

Answer:
Yes. The hiker intended to enter the land, and mistake as to ownership is not a defense. Actual damage is not required.

Worked Example 1.2

A person throws a ball onto a neighbor’s land, intending only to throw it far. The ball lands in the neighbor’s yard. Is this trespass?

Answer:
Yes. The intent required is to do the act that causes entry, not to intend a trespass. Throwing the ball was intentional, and it physically invaded the land.

Worked Example 1.3

A factory emits loud noise and bright lights that disturb nearby homeowners but does not emit any dust or physical particles. The homeowners sue for trespass to land. Is trespass the best theory?

Answer:
No. Without a tangible physical invasion, trespass is not established. The interference is with use and enjoyment through noise and light, which is analyzed as private nuisance.

Exam Warning

On the MBE, do not confuse:

• Intent to trespass with intent to enter: only the latter is required.
• Physical invasions (trespass) with intangible interferences (nuisance).
• A mistaken belief about boundaries with a valid defense; mistake does not excuse trespass.

Revision Tip

Remember: actual damage is not required for trespass to land. Nominal damages are sufficient for liability, and continuing trespass can support an injunction.

Key Point Checklist

This article has covered the following key knowledge points:

• Trespass to land protects the right to exclusive possession of real property.
• Elements: physical invasion, intent to enter or cause invasion, and causation; actual damage is not required.
• Intent to trespass or cause harm is not required; an honest mistake about ownership is no defense.
• Physical invasion can be direct (personal entry) or indirect (objects, substances, or structures), including above and below the surface.
• Anyone in possession (e.g., tenant, adverse possessor, owner in possession) may sue; the owner out of possession generally may not.
• Defenses include consent, private necessity (qualified privilege with liability for actual damage), public necessity (complete privilege), and legal authority.
• Trespass is distinct from nuisance, which may involve purely intangible interferences with use and enjoyment of land.
• Trespass to land is distinct from trespass to chattels and conversion, which concern personal property.

Key Terms and Concepts

• Trespass to Land
• Intent (Trespass)
• Physical Invasion
• Continuing Trespass
• Possession (Land)
• Consent (Trespass)
• Necessity (Trespass)
• Private Necessity
• Public Necessity
• Nuisance