this post was submitted on 18 Sep 2024

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when someone is considered trespassing, are they 'legally trespassing ' or 'illegally trespassing' (lemmy.ca)

submitted 20 hours ago by [email protected] to c/nostupidquestions

12 comments fedilink hide all child comments

Or is saying legally/illegally a non needed word in most circumstances sinc th act of trespass is considered an illegal activity?

all 13 comments

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[–] FireTower 12 points 15 hours ago (1 children)

When someone says someone is legally trespassing read it as "legally [speaking they are] trespassing". At least in most cases.

Pedantic tangent:

You could lawfully trespass on the land of another (with permission). There's 4 elements to the tort of trespass to land. 1) You act volitionally. 2) You intend to occupy that space, are substantially certain that will happen as a result of your actions, or you intend another intentional tort granting transfered intent. 3) But for your act their property wouldn't have been invaded. 4) Their property has been invaded.

In civil law a trespass to land doesn't consider whether you have permission or not to determine if you trespassed. They would determine that you did infact trespass but you have the defense of having done so with the privilege to do so granted by the owner. Meaning you did trespass but did so only in a manner appropriate under law.

[–] [email protected] 2 points 5 hours ago

Can’t wait to use phrases like “He was legally stealing a car” or “That guy was legally murdered”.

[–] Rhynoplaz 26 points 19 hours ago

By legally trespassing, they mean that it fits the legal definition of trespassing. Like legally blind, or legally insane.

[–] BenM2023 2 points 13 hours ago (1 children)

In the UK there is a split between England and Wales and Scotland. "southern" UK trespass is a civil offence. Scotland it is criminal.

So in southern UK trespassers will most definitely not be prosecuted (the railway and power plant property are, iirc, the two exceptions because they have by-laws) but may be sued for damages, in Scotland they can be prosecuted.

[–] [email protected] 2 points 8 hours ago

Scotland has "right to roam" legislation though, so there are a lot more places where you are not actually trespassing.

[–] credo 7 points 18 hours ago

Legally, they’re trespassing.

[–] [email protected] 0 points 9 hours ago

Trespassing should never be illegal if you are "trespassing up," meaning you are trespassing on the land of someone with more wealth than you.

[–] RightHandOfIkaros 4 points 19 hours ago* (last edited 19 hours ago) (2 children)

A trespasser is trespassed from a property by law enforcement at the request of the property owner. This is called a criminal trespass.

Illegally trespassing would be an informal term, and legally or criminal trespassing would the the legal term to describe the act of staying on private property after they have been warned/asked to leave. If you are trespassing in a legal or allowed way, then it is not trespassing.

In most places, a property owner must ask law enforcement to trespass the person off of the property before someone is considered legally or criminally trespassing. In most places a warning, either verbal or by sign or other means, must be given before a person can be criminally trespassed, but that is not automatic as the property owner may choose to not enforce it.

[–] FuglyDuck 2 points 17 hours ago

A trespasser is trespassed from a property by law enforcement at the request of the property owner. This is called a criminal trespass.
(snip)
In most places, a property owner must ask law enforcement to trespass the person off of the property before someone is considered legally or criminally trespassing. In most places a warning, either verbal or by sign or other means, must be given before a person can be criminally trespassed, but that is not automatic as the property owner may choose to not enforce it.

not true. I work in contract security training guards. have for years.

Trespassing generally only becomes illegal/criminal when the trespasser becomes aware that they are in fact trespassing. For examples, somebody wandering onto private property from public property, they could become aware of the fact. For example, if you have to jump a fence to get to where you were, or you passed a 'no trespassing' sign, or if someone is telling you you're trespassing; or, for example, you're there to vandalize stuff, or maybe shoplift.

The act of "trespassing" somebody is simply informing someone that they're presently trespassing. You don't have to be a cop to trespass someone; property owners have the right (and, generally, the obligation,) to control whose accessing their property and for what purposes. you can be asked to leave by a property owner or the agents thereof at any time, and that act of being asked is called "trespassing".

As for when it can be enforced... that's when the person is aware of their presence being unwelcome. Doesn't matter if the property owner is there or not, exactly. no warnings have to be given, for example, if it's reasonable that someone shouldn't be there. for example, you intrude into a nuclear facility, we're cuffing you up and handing you off, no warnings given. Similarly, if a group is throwing a kegger in a private parking lot, it's generally unsafe to go out and warn the group.

[–] [email protected] 2 points 19 hours ago (1 children)

In most places, a property owner must ask law enforcement to trespass the person off of the property before someone is considered legally or criminally trespassing.

This is decided by and highly specific to the local court/prosecutors, so check local practices. I've lived in an area where three adjacent counties had three different ways to handle trespassing. One had law enforcement only trespassing, one had owner/manager only trespassing (as in, a random employee can't do it, only the owner of the property or the person who is on the lease for the land/building), and the last was so loose a patron of a business telling someone to get lost was almost enough for the person trespassing to be arrested.

[–] FuglyDuck 2 points 16 hours ago

...One had law enforcement only trespassing, one had owner/manager only trespassing (as in, a random employee can’t do it, only the owner of the property or the person who is on the lease for the land/building), and the last was so loose a patron of a business telling someone to get lost was almost enough for the person trespassing to be arrested.

honestly, in my experience, this sounds more like policies of the property owners (or employer) than regulations or laws.

Especially since while it’s not specifically codified in federal law, SCOTUS has routinely accepted that the right to exclude is one of the core property rights inherent in property ownership- and consistently ruled in favor of property owners exercising control over their property. (Indeed, there have been instances where, when it was deemed that a property owner should have taken action to stop a trespasser, and that trespasser then harms some one; that they had a duty of care and were negligent. For example, any of the times that a convicted pedophile got hired by a daycare facility,)

there are exceptions that are frequently codified in state law, for example, a hunter retrieving wounded game, or kids retrieving a Frisbee. or a dog owner cleaning up after their dog (and, indeed, the dog taking the shit in the first place,).

Further more, all “agent of whatever” really means is that they are someone who is duly authorized to act on another’s behalf. For example, if you have power of attorney over a grandparent, you are their agent, acting on their behalf; or someone employed by the federal government, to do… stuff… they’re agents of the government. (Fun fact, this is why FBI and other federal law enforcement officers are ‘Special Agents’.). Security guards are agents of the property owners, and almost universally allowed to trespass individuals.

[–] [email protected] 3 points 18 hours ago

I believe it's unillegally trespassing