When someone crosses onto or into your property without permission there is potentially an action for you to pursue for trespass. There are two different ways Florida defines a trespass. The first is under Florida Statute 810.08 which encompasses trespass in a structure or a conveyance. The second kind of trespass violation under Florida law is encompassed in Florida statute 810.09 which encompasses trespass on property other than a structure or conveyance. If a person enters onto property other than a structure or conveyance, where notice was given through communication or posting or if the property is unenclosed curtilage of a dwelling and someone enters or remains with the intent to commit an offense then they have committed trespass. A party can commit a trespass by placing objects on your property without your consent or for failing to remove an object after you took consent away. Also, trespass can occur if there is a change to the land of the property. For example, if someone directs a stream away from their property and it then harms your property you could potentially have an action for trespass. Acts like someone else cutting down trees on your property or someone building a seawall can also be viewed as trespass. Common terminology when discussing trespass is as follows:
- Structure is defined as: any kind or permanent or temporary building with a roof over it, including the curtilage.
- Conveyance is defined as: motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft, or sleeping car; and “to enter a conveyance” includes taking apart any portion of the conveyance.
- Curtilage – the area of land attached to the home
- Unenclosed curtilage – unenclosed land and outbuildings that are adjacent to and connected with the dwelling.
Pursuing a Trespass Action
The biggest element that must be proven in an action for trespass is that you are the true owner of the property. Showing the location of the trespass and the boundaries of the land are also crucial to proving your action for trespass. The first thing that will need to be done is you and your attorney will file a complaint against the alleged trespasser. The complaint will allege (1) that you are the owner and were in possession of the property at issue; (2) it will describe the property; (3) the details of the trespass; and (4) what kind of damages occurred from the trespass. The court proceedings will go on from that point. There are however several defenses to a trespass action. The trespasser may claim it was necessary for them to be on your property or they may claim it was an innocent mistake. These are common defenses and if there are no grounds for them they will not have any merit in the suit. If you succeed with your lawsuit, then you are entitled to damages and the trespasser could face criminal charges.
There are multiple ways that you, as an injured party, can recover from a trespass action. First there are criminal penalties that can be taken against the trespasser. Trespassing on a structure or conveyance is normally categorized as what is known as a second-degree misdemeanor. If there is a person in the structure or conveyance however, then the trespass will be upgraded to a first-degree misdemeanor (in circumstances where the trespasser is armed things change and become a felony charge). If it is a second-degree misdemeanor the guilty party will serve up to 60 days in jail and pay up to $500 in fines. If it is a first-degree misdemeanor then the person will serve up to 1 year in jail and pay up to $1,000 in fines. This is a separate action from the civil lawsuit you will file to recover monetary damages. Criminal charges are brought on by the state and a separate complaint would need to be filed if you were planning on pressing criminal charges.
In a normal trespass case an injured party will recover the difference between the value of the land before the trespass and after the trespass. If you are a tenant and not a property owner bringing a trespass action, then recovery is different. An owner recovers for the loss of value of the property while the tenant may recover for injury to their right of possession. Whatever it takes to make the injured party “whole” again is the goal of the court. You will unlikely be awarded any kind of damages over what damage costs you have from the trespass. If fraud, malice, willfulness, gross negligence, oppression or other aggravating circumstances accompany a trespass then the court will potentially award punitive damages. Those would be an amount more than what is needed to make someone whole again. Attorneys’ fees are often not awarded in these actions so those would have to be excluded from recovery.
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If you or a loved one has faced any of the circumstances like those described above, please contact Miami probate, business and real estate lawyer Andrew J. Pascale.
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