Trespass Litigation: An Overview

A trespass is an unauthorized entry onto another’s property that disrupts the property owner’s exclusive possession of the property. Although the precise elements vary across states, a plaintiff bringing a civil trespass claim generally must plead and prove that:

• The plaintiff owns or is rightfully in possession of the real property subject to the intrusion.
• The defendant entered (or caused a substance, an object, or a person to enter) onto the plaintiff’s property.
• The entry was intentional or the result of the defendant’s recklessness, negligence, or involvement in an ultrahazardous activity.
• The plaintiff did not authorize the intrusion, or the defendant acted in excess of the permission granted.

(See Elements of Trespass Claim, below.)

This article sets out key considerations for litigating civil claims for trespass to real property under state law. It explains the difference between a continuing and permanent trespass, defines the elements that a plaintiff must generally plead and prove to prevail on a trespass claim, discusses possible defenses to a trespass claim, and lays out potential remedies for trespass. Because the law on trespass varies across states, counsel should consult the law of the relevant jurisdiction for additional guidance.

Initial Considerations

Before commencing a civil action for trespass, counsel should gather facts about the client’s claims, identify potential defenses, consider whether to bring additional claims, and evaluate procedural issues.

Fact Gathering

Counsel should confer with their client to assess the case and conduct sufficient pre-suit research. Among other things, counsel should:

• Obtain all relevant facts and documents to adequately plead and support the elements of the trespass claim (see Elements of Trespass Claim, below). If discovery is needed, counsel should evaluate the scope and cost of discovery.
• Understand the nature of the trespass, including whether the defendant’s conduct created a continuing or permanent trespass (in the jurisdictions that recognize this distinction). The nature of the trespass may impact when the statute of limitations begins to run and the damages recoverable (see Nature of Trespass, below).
• Determine what damages the client incurred as a result of the trespass and whether the client may need a provisional remedy at the outset of the case, such as a preliminary injunction (see Potential Remedies, below).

Potential Defenses

Counsel should anticipate potential defenses the defendant may assert and ensure the plaintiff can adequately counter those defenses. For example, a defendant may claim that:

• The plaintiff authorized the defendant’s conduct.
• The statute of limitations has run.
• The plaintiff’s negligence contributed to its injuries.

(See Defenses to Trespass, below.)

Additional Claims

Counsel for the plaintiff should consider whether to bring additional claims based on the defendant’s conduct, including:

• Nuisance (see Aguilar v. Morales, 162 S.W.3d 825, 830 (Tex. App.—El Paso 2005, pet. denied); Mangini v. Aerojet-Gen. Corp., 12 Cal. 4th 1087, 1092 (1996)). Unlike trespass, nuisance involves an interference with the plaintiff’s interest in the private use and enjoyment of land and does not require interference with the plaintiff’s possession (see Helping Others Maintain Envtl. Standards v. Bos, 406 Ill. App. 3d 669, 689-90 (2010)). For example, unpleasant odors are commonly treated as nuisance claims because they interfere with a property owner’s use and enjoyment of their land, not their exclusive possession (see Avery v. GRI Fox Run, LLC, 2020 IL App (2d) 190382, ¶ 44; Ivory v. Int’l Bus. Machs. Corp., 983 N.Y.S.2d 110, 117 (3d Dep’t 2014)).
• Breach of contract (see Five Seas Inv’rs, Inc. v. Guzman, 258 So. 3d 569, 571 (Fla. 3d DCA 2018); Freese v. Buoy, 217 Ill. App. 3d 234, 244 (1991)).
• Quiet title (see Armitage v. Decker, 218 Cal. App. 3d 887, 892 (1990); O’Neal v. Duggar, 429 So. 2d 1308, 1309 (Fla. 1st DCA 1983)). Plaintiffs typically assert quiet title claims if there is uncertainty about which party owns the property or what rights a party has to the property.
• Negligence (see Caruso-Long v. Reccek, 243 A.3d 234, 237 (Pa. Super. 2020); Hensley v. San Diego Gas & Elec. Co., 7 Cal. App. 5th 1337, 1340 (2017); Ivory, 983 N.Y.S.2d at 114). Plaintiffs often allege negligence when it is unclear whether the defendant intended the entry to occur (see Defendant’s Intent, below).
• Inverse condemnation (a “takings” claim), if the defendant is a public entity (see Teat v. City of Apalachicola, 738 So. 2d 413, 413 (Fla. 1st DCA 1999); Salton Bay Marina, Inc. v. Imperial Irrigation Dist., 172 Cal. App. 3d 914, 926 (1985)).

Procedural Issues

Before filing suit, counsel must identify and analyze procedural issues, including:

• Forum. Counsel should confirm whether the desired forum has a particular court or division in which to file real property disputes and whether this case may (or must) be heard in that court or division (for example, Tex. Civ. Prac. & Rem. Code Ann. § 15.011 (actions for recovery of damages to real property must be brought in the county in which all or part of the property is located)).
• Standing. Counsel should confirm the plaintiff has standing to bring an action for trespass, meaning that the plaintiff has the right to relief in court and is the proper party to bring the action (see Plaintiff’s Possession, below).
• Capacity. Counsel should also confirm that the plaintiff has the legal capacity to sue. For example:
  • corporations typically may not sue or defend a lawsuit if they have not paid corporate taxes or fulfilled annual reporting requirements imposed by statute (for example, §§ 607.1622(6) and 605.0212(6), Fla. Stat.); or
  • if the property is held in the name of a trust, counsel usually must name the trustee as the plaintiff because the trust itself is unable to bring an action (see Portico Mgmt. Grp., LLC v. Harrison, 202 Cal. App. 4th 464, 473 (2011) (noting a trust is not a legal entity and cannot sue or be sued)).
• Pleading standard. Counsel should consult the relevant jurisdiction’s law to determine the pleading standard (or level of specificity) required for the complaint to survive dismissal. For example, in:
  • state court, most jurisdictions generally do not apply a heightened pleading standard to trespass claims (see Scholes v. Lambirth Trucking Co., 10 Cal. App. 5th 590, 598 (2017); Briggs v. Sw. Energy Prod. Co., 224 A.3d 334, 351 (Pa. 2020); see also Coddington v. Staab, 716 So. 2d 850, 851 (Fla. 4th DCA 1998); Dietz v. Ill. Bell Tel. Co., 154 Ill. App. 3d 554, 559 (1987)); and
  • federal court, the plaintiff should comply with the federal notice pleading standard, which requires the complaint to contain a short and plain statement of the claim showing that the plaintiff is entitled to relief. The facts alleged must be sufficient to give rise to a claim that is plausible on its face. (Federal Rules of Civil Procedure (FRCP) 8(a); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).)

Nature of Trespass

In many jurisdictions, trespasses are characterized as continuing or permanent (see Continuing Trespass, below, and Permanent Trespass, below). Although the exact definition of continuing or permanent trespasses varies from jurisdiction to jurisdiction, generally, a continuing trespass is an ongoing intrusion and a permanent trespass is a fixed intrusion.

Counsel should understand the type of trespass at issue because it may impact:

• When the statute of limitations begins to run (see Statute of Limitations, below).
• The recoverable damages (see Recoverable Damages, below).

Continuing Trespass

As the name suggests, a continuing trespass (sometimes called a temporary trespass) is a continuous intrusion, rather than a one-time occurrence. Many states consider a trespass continuing if either:

• The unauthorized entry may be discontinued or abated.
• There is uncertainty about:
  • the number of future occurrences; or
  • the future damages that may occur.

(See Kowalski v. TOA PA V, L.P., 206 A.3d 1148, 1161 (Pa. Super. 2019); Starrh & Starrh Cotton Growers v. Aera Energy LLC, 153 Cal. App. 4th 583, 592 (2007); Baker v. Hickman, 969 So. 2d 441, 443 (Fla. 5th DCA 2007); Krohn v. Marcus Cable Assocs., L.P., 201 S.W.3d 876, 881 (Tex. App.—Waco 2006, pet. denied).)

The continuing nature of the trespass usually refers to the continuing intrusion onto the plaintiff’s property, not the continued effects of the intrusion (see Suarez v. City of Tampa, 987 So. 2d 681, 686 (Fla. 1st DCA 2008); Krohn, 201 S.W.3d at 881). For example, courts have found that the following are continuing trespasses:

• The migration of wastewater produced from the defendant’s oil production activities onto the plaintiff’s property (Starrh & Starrh Cotton Growers, 153 Cal. App. 4th at 588).
• A quarry’s repeated blasting activities, which destabilized the plaintiff’s property (SDI Quarry v. Gateway Estates Park Condo. Ass’n, 249 So. 3d 1287, 1292 (Fla. 1st DCA 2018)).
• Increased flow of surface water from an uphill condominium development onto the lower property (Kowalski, 206 A.3d at 1162).
• Encroachment of trees onto an adjoining landowner’s property (Caruso-Long, 243 A.3d at 240).

Permanent Trespass

A permanent trespass is a single, fixed intrusion. Many states consider a trespass permanent if either:

• The injury or change to the land is permanent or abatement is impractical.
• The future impact of the trespass can be reasonably evaluated.

(See Kowalski, 206 A.3d at 1160-61; Starrh & Starrh Cotton Growers, 153 Cal. App. 4th at 592; Baker, 969 So. 2d at 443; Krohn, 201 S.W.3d at 881.)

Examples of permanent trespasses include:

• The contamination of the plaintiff’s property by the defendant manufacturer’s toxic wastes (Mangini v. Aerojet-Gen. Corp., 12 Cal. 4th 1087, 1103 (1996)).
• The defendant’s removal of a section of railroad tracks and ties on the plaintiff’s property (Cranesville Block Co. v. Niagara Mohawk Power Corp., 572 N.Y.S.2d 495, 497 (3d Dep’t 1991)).
• A tenant’s depositing of hazardous substances onto the landlord’s property (Graham Oil Co. v. BP Oil Co., 885 F. Supp. 716, 726 (W.D. Pa. 1994) (applying Pennsylvania law)).
• A cable company’s placement of cable lines across the plaintiff’s property (Krohn, 201 S.W.3d at 881).

Statute of Limitations

The nature of the trespass may impact when the statute of limitations begins to run. If the trespass is:

• Continuing, each repetition of the intrusion typically begins a new limitations period during which the plaintiff may bring an action for damages that accrued during that period (see Madani v. Rabinowitz, 45 Cal. App. 5th 602, 607-09 (2020); ACCI Forwarding, Inc. v. Gonzalez Warehouse P’ship, 341 S.W.3d 58, 63-64 (Tex. App.—San Antonio 2011, no pet.); Bloomingdales, Inc. v. N.Y.C. Transit Auth., 859 N.Y.S.2d 22, 25 (1st Dep’t 2008); Suarez, 987 So. 2d at 685; Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 106 (1996); see also Continuing Trespass, above).
• Permanent, the statute of limitations typically begins to run at the time of the original intrusion (see Madani, 45 Cal. App. 5th at 607-09; Kowalski, 206 A.3d at 1160; ACCI Forwarding, Inc., 341 S.W.3d at 63-64; Cranesville Block Co., 572 N.Y.S.2d at 497; see also Permanent Trespass, above).

Depending on the jurisdiction and the facts of the case, a plaintiff asserting trespass may invoke the discovery rule, which tolls the statute of limitations until the plaintiff discovered or could have discovered the trespass (see, for example, Sampathkumar v. Chase Home Fin., LLC, 241 A.3d 1122, 1144 (Pa. Super. 2020); Shamsian v. Atl. Richfield Co., 107 Cal. App. 4th 967, 980, 982-83 (2003)). If applicable, the plaintiff should plead and prove facts justifying delayed accrual, including the circumstances excusing the delayed discovery (see, for example, Mangini v. Aerojet-Gen Corp., 230 Cal. App. 3d 1125, 1150 (1991)).

Recoverable Damages

Whether the trespass is continuing or permanent may impact the damages recoverable. If the trespass is:

• Continuing, the plaintiff usually may recover damages only for present and past harm. The plaintiff is not entitled to an award for future harm because the trespass may end. However, plaintiffs can bring periodic, successive actions for a continuing trespass. (See Caruso-Long, 243 A.3d at 239; Starrh & Starrh Cotton Growers, 153 Cal. App. 4th at 592; Smith v. Town of Long Lake, 837 N.Y.S.2d 391, 394 (3d Dep’t 2007).)
• Permanent, the plaintiff usually must recover damages for past, present, and future harm in a single action. The damage award compensates the plaintiff for the permanent injury and precludes further recovery. (See Kowalski, 206 A.3d at 1160; Starrh & Starrh Cotton Growers, 153 Cal. App. 4th at 592; Baker, 969 So. 2d at 443.)

Elements of Trespass Claim

Although the elements of a trespass claim vary depending on the jurisdiction, a plaintiff asserting trespass generally must plead and prove that:

• It owned or possessed the real property subject to the intrusion (see Plaintiff’s Possession, below).
• The defendant entered (or caused a substance, an object, or a person to enter) onto the plaintiff’s property (see Physical Entry, below).
• The entry was:
  • intentional; or
  • a result of recklessness, negligence, or an ultrahazardous activity.

(See Defendant’s Intent, below.)

• It did not authorize the entry, or the entry exceeded the permission granted by the plaintiff (see Lack of Authorization, below).
• The defendant’s conduct caused the plaintiff’s harm (see Causation, below).

Plaintiff’s Possession

To prevail on a civil trespass claim, a plaintiff generally must prove that, during the relevant time, the plaintiff either:

• Had an ownership interest in the real property (see Gunning v. Equestleader.com, Inc., 253 So. 3d 646, 648 (Fla. 2d DCA 2017); Fed. Nat’l Mortg. Ass’n v. Gordon, 77 N.E.3d 315, 322 (Mass. App. Ct. 2017); Wheeler v. Del Duca, 58 N.Y.S.3d 409, 411 (2d Dep’t 2017); Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex. App.—Fort Worth 2006, pet. denied); Posey v. Leavitt, 229 Cal. App. 3d 1236, 1245-46, n.6 (1991)).
• Rightfully possessed the real property (see Veiseh v. Stapp, 35 Cal. App. 5th 1099, 1105 (2019); Gunning, 253 So. 3d at 648; Fed. Nat’l Mortg. Ass’n, 77 N.E.3d at 322; Wheeler, 58 N.Y.S.3d at 411; Wilen, 191 S.W.3d at 798). For example, a plaintiff may establish it possessed the property because it:
  • occupied the property;
  • substantially enclosed the property; or
  • cultivated or otherwise appropriately used the property.

(See Orange Cnty. Water Dist. v. Sabic Innovative Plastics US, LLC, 14 Cal. App. 5th 343, 413 (2017).)

Some states require that the plaintiff prove its possession of the property was exclusive (see, for example, Kapner v. Meadowlark Ranch Assn., 116 Cal. App. 4th 1182, 1189 (2004) (holding tenants in common cannot bring an action against other tenants in common for trespass on commonly owned property as none have exclusive possession of the property as against the others)).

An easement interest in real property is typically insufficient to support an action for trespass (see Wellesley Conservation Council, Inc. v. Pereira, 153 N.E.3d 413, 421-22 (Mass. App. Ct. 2020); McBride v. Smith, 18 Cal. App. 5th 1160, 1174 (2018); Winselmann v. Reynolds, 690 So. 2d 1325, 1327 (Fla. 3d DCA 1997)).

Because defendants commonly plead lack of standing as an affirmative defense, counsel typically preemptively address it in the complaint (see Williams v. Super. Ct., 3 Cal. 5th 531, 558 (2017) (noting generally that lack of standing is an affirmative defense); Sierra Club v. Off. of Mines & Mins. of Dep’t of Nat. Res., 2015 IL App (4th) 140405, ¶ 22 (2015) (same)).

Physical Entry

A trespass claim usually requires the physical entry of a person or object onto the plaintiff’s property (see Caruso-Long, 243 A.3d at 238; Elton v. Anheuser-Busch Beverage Grp., Inc., 50 Cal. App. 4th 1301, 1306 (1996); Millers Mut. Ins. Ass’n of Ill. v. Graham Oil Co., 282 Ill. App. 3d 129, 139 (1996)). To satisfy this requirement, plaintiffs generally plead and prove that the defendant:

• Entered onto the plaintiff’s property (see Elton, 50 Cal. App. 4th at 1306; Millers Mut. Ins. Ass’n of Ill., 282 Ill. App. 3d at 139; Jones v. Wagner, 624 A.2d 166, 169 (Pa. Super. 1993)).
• Caused a substance or object to enter onto the plaintiff’s property (see Vaughn v. Drennon, 372 S.W.3d 726, 738 (Tex.—Tyler 2012, no pet.); Elton, 50 Cal. App. 4th at 1306; Millers Mut. Ins. Ass’n of Illinois, 282 Ill. App. 3d at 139; Jones, 624 A.2d at 169). The entry may be on, beneath, or above the surface of the real property (see Caruso-Long, 243 A.3d at 238; Aguilar, 162 S.W.3d at 836; see also Standard Realty Assocs., Inc. v. Chelsea Gardens Corp., 964 N.Y.S.2d 94, 94 (1st Dep’t 2013) (advertising sign trespassed into plaintiff’s airspace); Spar v. Pac. Bell, 235 Cal. App. 3d 1480, 1486 (1991) (trespass by underground telephone utility lines)).
• Caused a third person to enter the plaintiff’s property (see Wilen, 191 S.W.3d at 798; Freese, 217 Ill. App. 3d at 244).

Intangible intrusions (such as noise, odor, or light) are commonly treated as nuisance claims, rather than trespass claims, because they interfere with a property owner’s use and enjoyment of their land, not their exclusive possession (see Avery, 2020 IL App (2d) 190382, ¶ 44; Ivory, 983 N.Y.S.2d at 117). However, in some jurisdictions, a plaintiff may bring a trespass claim for intangible intrusions (see San Diego Gas & Elec. Co. v. Super. Ct., 13 Cal. 4th 893, 936 (1996) (defendant may be liable for trespass where intangible intrusion causes actual physical damage to the property); see also Stevenson v. E.I. DuPont De Nemours & Co., 327 F.3d 400, 406 (5th Cir. 2003) (applying Texas law) (permitting recovery for trespass for airborne particulates)).

Defendant’s Intent

A plaintiff asserting trespass generally must plead and prove that the defendant’s entry was either:

• Intentional (see Intentional Trespass, below).
• A result of recklessness, negligence, or an ultrahazardous activity (see Unintentional Trespass, below).

Intentional Trespass

Trespass claims are usually based on intentional entries. Although the exact standard varies among jurisdictions, a plaintiff asserting trespass generally must plead and prove that the trespass was intentional in that the defendant intended the entry to occur (see Hensley, 7 Cal. App. 5th at 1356 n.7; Marone v Kally, 971 N.Y.S.2d 324, 327-28 (2d Dep’t 2013); Wilen, 191 S.W.3d at 804). The defendant’s motives for the entry are usually irrelevant (see Wilen, 191 S.W.3d at 804; Millers Mut. Ins. Ass’n of Illinois, 282 Ill. App. 3d at 139). Defendants may be liable for trespass even where they acted under a mistaken belief that they had the right to enter (see Marone, 971 N.Y.S.2d at 328; Miller v. Nat’l Broad. Co., 187 Cal. App. 3d 1463, 1481 (1986)).

A defendant is typically liable for an intentional trespass regardless of whether the unauthorized entry caused the plaintiff harm (see Daniel v. Morris, 181 So. 3d 1195, 1199 (Fla. 5th DCA 2015); Dial v. City of O’Fallon, 81 Ill. 2d 548, 553 (1980); see also Nominal Damages, below).

Unintentional Trespass

Many jurisdictions impose liability for trespass where the entry is a result of recklessness, negligence, or an ultrahazardous activity, rather than an intentional act (see, for example, Ross v. Lowitz, 222 N.J. 494, 510 (2015); DeSanctis v. Lynn Water & Sewer Comm’n, 666 N.E.2d 1292, 1297 (Mass. 1996); Wilson v. Interlake Steel Co., 32 Cal. 3d 229, 233 (1982)). Plaintiffs asserting unintentional trespass must typically plead and prove the entry caused harm. Courts are unlikely to find liability for unintentional trespass that causes no harm. (See DeSanctis, 666 N.E.2d at 1297; see also Elton, 50 Cal. App. 4th at 1307.)

In some states, a trespass claim based on an indirect intrusion caused by the defendant’s recklessness, negligence, or involvement in an ultrahazardous activity (such as vibrations caused by blasting operations) is a claim for “trespass on the case,” as distinguished from a trespass claim based on a direct, intentional intrusion (see Smith v. McCullough Dredging Co., 152 So. 2d 194, 196 (Fla. 3d DCA 1963); compare to Gallin v. Poulou, 140 Cal. App. 2d 638, 641 (1956) (California does not recognize the distinction between direct and indirect intrusions)).

When a trespass claim is based on recklessness, negligence, or an ultrahazardous activity, the plaintiff must plead and prove the requisite culpable conduct (see DeSanctis, 666 N.E.2d at 1297; Dial, 81 Ill. 2d at 553 (recovery for trespass resulting from negligence, recklessness, or an ultrahazardous activity governed by general principles governing negligence or ultrahazardous activity)). For example, a trespass claim based on negligent conduct must plead and prove negligence (see DeSanctis, 666 N.E.2d at 1297).

Lack of Authorization

To plead that the defendant’s conduct was unauthorized, counsel typically allege that the defendant acted either:

• Without the plaintiff’s permission (see, for example, Envtl. Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 424 (Tex. 2015); Benno v. Cent. Lake Cnty. Joint Action Water Agency, 242 Ill. App. 3d 306, 313 (1993)). A defendant may be liable for trespass by leaving an object on the plaintiff’s property after the plaintiff has withdrawn permission (see Suarez, 987 So. 2d at 686).
• Beyond the scope of the plaintiff’s permission (see, for example, Tice v. Herring, 717 So. 2d 181, 182 (Fla. 1st DCA 1998); Civic W. Corp. v. Zila Indus., Inc., 66 Cal. App. 3d 1, 17 (1977)). For example, a defendant may be liable for trespass where:
  • the plaintiff granted permission for the defendant to enter its land to secure and sell certain collateral, but the defendant attempted to assert exclusive possession by prohibiting the plaintiff’s employees and officers from remaining on the premises (see Civic Western Corp., 66 Cal. App. 3d at 17); or
  • they exceeded the scope of their license by allowing spillage of hazardous substances on the plaintiff’s land (Am. Glue & Resin, Inc. v. Air Prods. & Chems., Inc., 835 F. Supp. 36, 48 (D. Mass. 1993) (applying Massachusetts law)).

Many jurisdictions consider lack of authorization as an element of a trespass claim rather than an affirmative defense (see, for example, Envtl. Processing Sys., L.C., 457 S.W.3d at 424; Spinks v. Equity Residential Briarwood Apartments, 171 Cal. App. 4th 1004, 1043 (2009)).

Causation

Subject to some exceptions, such as nominal damages, a plaintiff seeking damages for trespass must plead and prove a causal link between the defendant’s conduct and the plaintiff’s injury (see Shaw v. County of Santa Cruz, 170 Cal. App. 4th 229, 279 (2008); Tex. Woman’s Univ. v. The Methodist Hosp., 221 S.W.3d 267, 286 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Ithaca Mem’l Chapter No. 147, Disabled Am. Veterans, Inc. v. First Nat. Bank & Tr. Co., 466 N.Y.S.2d 496, 497 (3d Dep’t 1983); see also Damages, below).

Defenses to Trespass

Defenses to a trespass claim generally fall into two broad categories. A defendant may challenge a plaintiff’s trespass claim by establishing:

• The plaintiff failed to plead or prove a required element of the claim (see Negating an Element, below).
• New matters (matters not put in issue by the plaintiff) which excuse the defendant from liability for trespass (see Affirmative Defenses, below).

(See, for example, Walsh v. W. Valley Mission Cmty, Coll. Dist., 66 Cal. App. 4th 1532, 1546 (1998) (discussing types of defenses generally).)

Negating an Element

A defendant may oppose a trespass claim by negating an element of the claim. For example, a defendant may assert the plaintiff failed to plead or prove the defendant’s entry was unauthorized (see Leavitt Enter. v. Two Fulton Square, LLC, 120 N.Y.S.3d 363, 366 (2d Dep’t 2020); Pearson v. Ford Motor Co., 694 So. 2d 61, 69 (Fla. 1st DCA 1997); Gedekoh v. Peoples Nat. Gas Co., 133 A.2d 283, 284 (Pa. Super. 1957); see also Lack of Authorization, above).

Defenses based on denying or disproving an essential allegation in the complaint are sometimes evident on the face of the complaint or can be established through judicially noticeable facts. In those instances, the defendant may assert them at the beginning of the case through a motion to dismiss, motion for judgment on the pleadings, or other similar motion. The precise mechanism depends on the jurisdiction.

However, if the defendant must support the defense with evidence that is not apparent on the face of the complaint or the court cannot judicially notice, the defendant typically must raise it as an affirmative defense in its answer and make its case in a summary judgment motion or at trial (see Affirmative Defenses, below).

Affirmative Defenses

• A defendant may oppose a trespass claim by establishing new matters that excuse the defendant from liability. For example, a defendant in an action for trespass may assert:
• The trespass claim is time barred under an applicable statute of limitations. The statute of limitations for trespass varies across jurisdictions, but usually ranges from two to four years (see Caruso-Long, 243 A.3d at 239 (two years); Suarez, 987 So. 2d at 685 (four years); Carpenter v. Texaco, Inc., 646 N.E.2d 398, 399 (Mass. 1995) (three years)). The nature of the trespass may affect when the statute of limitations begins to run (see Statute of Limitations, above).
• The plaintiff’s own negligence contributed to the injury (see DeSanctis, 666 N.E.2d at 1297).
• The plaintiff is equitably estopped from asserting the trespass claim (see Geddes v. Mill Creek Country Club, Inc., 196 Ill. 2d 302, 312 (2001)).
• The defendant’s conduct created an easement by prescription (see Stefanis v. Town of Middletown, 867 N.Y.S.2d 755, 757 (3rd Dep’t 2008); Jones, 624 A.2d at 170 n.3).
• The defendant’s conduct was within the terms of a governing agreement (see Leavitt Enter., Inc., 120 N.Y.S.3d at 366; Hattaway v. Fla. Power & Light Co., 133 So. 2d 101, 103 (Fla. 2d DCA 1961)).

A defendant is typically required to assert affirmative defenses in its answer or other responsive pleading or else it may waive them (see Walsh v. W. Valley Mission Cmty, Coll. Dist., 66 Cal. App. 4th 1532, 1546 (1998); Wyman v. Robbins, 513 So. 2d 230, 231 (Fla. 1st DCA 1987); Matthews v. Malloy, 272 A.2d 226, 228 (Pa. Super. 1970)).

Potential Remedies

The most common remedies plaintiffs seek for trespass claims are damages and injunctive or declaratory relief.

Damages

Recoverable damages in a trespass action may include:

• Compensatory damages (see Compensatory Damages, below).
• Special or consequential damages (see Special or Consequential Damages, below).
• Punitive or exemplary damages (see Punitive or Exemplary Damages, below).
• Statutory damages (see Statutory Damages, below).
• Nominal damages (see Nominal Damages, below).

Compensatory Damages

Courts commonly award compensatory damages for trespass claims. Depending on the jurisdiction, the nature of the trespass, and the facts of the case, compensatory damages for trespass may include one or more of the following:

• The cost to repair the damage and restore the property to its pre-trespass condition (see Volunteer Fire Ass’n of Tappan, Inc. v. County of Rockland, 956 N.Y.S.2d 102, 106 (2d Dep’t 2012); First Baptist Church of Lombard v. Toll Highway Auth., 301 Ill. App. 3d 533, 545 (1998)). Courts most commonly apply this when the trespass is continuing (see Starrh & Starrh Cotton Growers, 153 Cal. App. 4th at 592; Uvalde County v. Barrier, 710 S.W.2d 740, 743-44 (Tex. App.—San Antonio 1986, no pet.); see also Continuing Trespass, above).
• Diminution in market value (see Volunteer Fire Ass’n of Tappan, Inc., 956 N.Y.S.2d at 106; First Baptist Church of Lombard, 301 Ill. App. 3d at 544; Stockman v. Duke, 578 So. 2d 831, 832 (Fla. 2d DCA 1991)). Courts most commonly apply this when the trespass is permanent (see Starrh & Starrh Cotton Growers, 153 Cal. App. 4th at 592; Uvalde County, 710 S.W.2d at 743-44; see also Permanent Trespass, above).
• The value of any lost use or enjoyment (see Gunning, 253 So. 3d at 648; Vaughn, 372 S.W.3d at 738). Some states define the value of lost use as the benefits obtained by the defendant from the trespass (see, for example, Starrh & Starrh Cotton Growers, 153 Cal. App. 4th at 603; Sakele Bros., LLC v. Safdie, 752 N.Y.S.2d 626, 632 (1st Dep’t 2002)).

Some jurisdictions may also permit a plaintiff to recover damages for emotional distress (see, for example, Miller, 187 Cal. App. 3d at 1481; compare to Coddington, 716 So. 2d at 851 (mental distress is not an element of compensatory damages for trespass)).

Special or Consequential Damages

Depending on the facts of the case, a plaintiff in a trespass case may be allowed to recover special (also commonly called “consequential”) damages (see, for example, Volunteer Fire Ass’n of Tappan, Inc., 956 N.Y.S.2d at 106). Special damages are damages that are specific to the circumstances but not necessarily the usual and ordinary consequences of the wrongful act (see Licudine v. Cedars-Sinai Med. Ctr., 3 Cal. App. 5th 881, 891 (2016) (discussing special damages generally); Samson Lone Star Ltd. P’ship v. Hooks, 497 S.W.3d 1, 19 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (same); Hooker v. State Farm Fire & Cas. Co., 880 A.2d 70, 77 (Pa. Cmwlth. 2005) (same)).

Plaintiffs usually must plead special damages with particularity (see, for example, FRCP 9(g); Licudine, 3 Cal. App. 5th at 891; Emergency Enclosures, Inc. v. Nat’l Fire Adjustment Co., 893 N.Y.S.2d 414, 417 (4th Dep’t 2009); Hooker, 880 A.2d at 77; Burke v. Union Pac. Res. Co., 138 S.W.3d 46, 66 (Tex. App.— Texarkana 2004, pet. denied); Hutchison v. Tompkins, 259 So. 2d 129, 132-33 (Fla. 1972)).

Punitive or Exemplary Damages

Many jurisdictions permit a plaintiff to recover punitive damages (also referred to as exemplary damages) in trespass cases where the defendant acted with the requisite degree of bad conduct. The exact standard for obtaining punitive or exemplary damages varies among jurisdictions, but often requires a defendant’s conduct to be wanton, reckless, malicious, or grossly negligent. (See, for example, Arcamone-Makinano v. Britton Prop., Inc., 67 N.Y.S.3d 290, 294 (2d Dep’t 2017); Spinks, 171 Cal. App. 4th at 1055; Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 48 (1984); Roark v. Musgrave, 41 Ill. App. 3d 1008, 1014-15 (1976).)

Punitive damages are often limited to a single-digit ratio to compensatory damages (such as 4:1) (see, for example, State Farm Mut. Auto. Ins. v. Campbell, 538 U.S. 408, 416-17 (2003); Int’l Union of Operating Eng’rs, Local 150 v. Lowe Excavating Co., 225 Ill. 2d 456, 483-85 (2006); Boeken v. Philip Morris, Inc., 127 Cal. App. 4th 1640, 1701 (2005)).

Statutory Damages

Depending on the facts of the case, a plaintiff may recover statutory damages for trespass. Counsel should determine if there are statutes or rules concerning the damages available for the specific trespass claim. For example, some states provide for double or treble damages where the trespasser cuts down timber on the plaintiff’s property (see Scholes v. Lambirth Trucking Co., 8 Cal. 5th 1094, 1108 (2020); Marsella v. Shaffer, 324 Ill. App. 3d 134, 143 (2001)). Statutory damages are often regarded as punitive in nature and cannot be recovered together with punitive damages (see, for example, Marsella, 324 Ill. App. 3d at 143; see also Punitive or Exemplary Damages, above).

Nominal Damages

A plaintiff asserting trespass often may recover nominal damages where the plaintiff has not suffered any actual damages (see, for example, Daniel, 181 So. 3d at 1199; Metro. Water Reclamation Dist. of Greater Chi. v. Terra Found. for Am. Art, 2014 IL App (1st) 130307, ¶ 85; Vaughn, 372 S.W.3d at 738; Ligo v. Gerould, 665 N.Y.S.2d 223, 224 (4th Dep’t 1997); Staples v. Hoefke, 189 Cal. App. 3d 1397, 1406 (1987)).

Plaintiffs may seek nominal damages because they are relevant in determining:

• The parties’ permanent rights.
• Which party is entitled to costs.

(See, for example, Staples, 189 Cal. App. 3d at 1406; Nappe, 97 N.J. at 48 (award of nominal damages is a judicial declaration that the plaintiff’s right has been violated).)

Additional or Alternative Relief

Apart from damages, the plaintiff may be entitled to additional or alternative relief, such as:

• Injunctive relief (see Injunctive Relief, below).
• Declaratory relief (see Declaratory Relief, below).

Injunctive Relief

A plaintiff asserting a trespass claim may need to seek injunctive relief because:

• The plaintiff needs interim relief before final judgment in a case.
• Money damages are an insufficient remedy, and the plaintiff needs a permanent injunction.

In these circumstances, a plaintiff may seek a temporary restraining order, preliminary injunction, or permanent injunction (see, for example, Arcamone-Makinano, Inc., 67 N.Y.S.3d at 295; Annex Indus. Park, LLC v. Corner Land, LLC, 206 So. 3d 739, 741 (Fla. 3d DCA 2016); Chi. Title & Tr. Co. v. Weiss, 238 Ill. App. 3d 921, 928-29 (1992); Franchi v. Boulger, 425 N.E.2d 372, 374-75 (Mass. App. Ct. 1981)). For example, courts have granted injunctive relief to:

• Prevent the defendant’s heavy-equipment storage business from using a portion of the plaintiff’s property for vehicular access (Annex Indus. Park, LLC, 206 So. 3d at 741).
• Enjoin the defendants from maintaining encroachments that projected over the plaintiffs’ property and direct the defendants to remove encroachments projecting into the plaintiffs’ air space (Arcamone-Makinano, 67 N.Y.S.3d at 295).
• Enjoin the defendants from conducting demonstrations inside the plaintiff’s stores (Walmart Stores, Inc. v. United Food & Commercial Workers Int’l Union, 4 Cal. App. 5th 194, 197 (2016); see also Donahue Schriber Realty Grp., Inc. v. Nu Creation Outreach, 232 Cal. App. 4th 1171, 1175 (2014) (enjoining solicitation on private sidewalks adjacent to store entrances in the plaintiff’s shopping center)).
• Prohibit the owners of a private golf course from hitting golf balls onto the plaintiffs’ properties (Amaral v. Cuppels, 831 N.E.2d 915, 920-21 (Mass. App. Ct. 2005)).

Declaratory Relief

The plaintiff may seek a declaration about the plaintiff’s rights, status, or other legal relationships or obligations in a trespass action. For example, plaintiffs in trespass actions may seek declaratory relief regarding:

• The location of boundary lines (see Kendall v. Walker, 181 Cal. App. 4th 584, 588 (2009)).
• The right to use water that touches the plaintiff’s property (riparian water rights) (see 5F, LLC v. Dresing, 142 So. 3d 936, 939 (Fla. 2d DCA 2014)).
• The existence or scope of an easement (see Perbix v. Verizon N., Inc., 396 Ill. App. 3d 652, 653 (2009)).