Laws covering criminal trespass and burglary vary by state, but most are consistent in defining what you cannot do and what the penalties will be. While most laws cover trespass onto private property, it is also possible to be in violation of the law on public property. In addition to criminal charges, the property owner may also bring a civil lawsuit against you.
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The courts began recognising a cause of action in trespass on a theory of privacy. Our law recognises that individual property owners have a right to exclude others from entering. This right to exclude is at the core of property law, and has expanded from civil law to include criminal penalties for unlawful trespass. The interest in privacy is considered so great that both private remedies, like civil lawsuits, and public remedies, in the form of criminal statutes, are available to protect us.
There are two major categories of property: private and public. Generally, it is not possible to criminally trespass on public property, such as roads and waterways. Loitering laws were enacted to cover this area. Homes are an archetypal example of private property, but places like stores are still considered to be private even though they give open access to the public. For instance, remaining in a store after you have been asked to leave may still be criminal trespass even though you entered the store lawfully.
To commit criminal trespass, one must knowingly enter or remain in private property without license or privilege to do so from the property owner. An easy example is breaking into a closed store. Remaining in someone's home after they have asked you to leave may also be criminal trespass. Most states define criminal trespass as a misdemeanour, but may, as New Hampshire does, upgrade the misdemeanour to a felony for repeat offenders, or if £650 or more in damages were caused by the trespass. The penalty is typically a fine.
Burglary is a higher form of trespass that usually requires that the individual be trespassing into a dwelling with the intent to commit a crime. A dwelling is defined as any property that is used for or may be used for nighttime lodging. Homes are the most common example of a dwelling, but a vehicle, boat, or business may also meet the definition if a person regularly sleeps inside. Burglary is typically defined as a felony, and carries heavier penalties than trespass. In California, burglary can carry a prison sentence of between 1 and 6 years.
In civil law, the term "trespass" is more widely used than just unauthorised entry into someone's property. Trespass also includes assault and battery (trespass on a person) and property damage and theft (trespass to chattel). Old law recognised that actual damages had to be suffered in order to sustain a lawsuit, but modern law recognises that the loss of privacy resulting from trespass is sufficient. A property owner may sue you for any actual or consequential damages you cause as a result of your trespass and for punitive damages for the loss of privacy rights.
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