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How can I deal with trespassing?

QUESTION:

My wife and I purchased three lots on a canal in Cape Coral three years ago. We built our house on one and have kept the other two undeveloped. Some of our neighbors, and some folks we don’t know, have been using a low area on one of the empty lots to launch their boats. Can we take any legal action about this? Are we liable if they are hurt?

ANSWER:

A person who enters another person’s property without permission is trespassing. Trespass is one of the oldest types of civil law claims, but you only have a case or cause of action if the trespasser is warned and asked to stop. A "No Trespassing" sign that is conspicuous is enough to warn people that they are interfering with your property rights.

Those who are launching their boats on your property are committing the most common type of trespass, trespass on the surface of the land. A trespass could also be airborne or subterranean because a property owner’s rights also extend into the air above the property and into the ground below. A person who flies a model airplane across your property and someone who shoots a gun across are both trespassing.

Entry onto your land without your express consent or invitation would be permissible under certain circumstances. If someone was in a boat in the canal behind your home and the boat began to sink, he would be permitted to land on your property because of necessity. In fact, you could be liable for injuries if you turned the sinking boat away. Of course, the boater would not be permitted to pitch a tent and have a barbecue once he has landed.

Emergencies constitute a similar privilege. Police may chase suspected criminals across your land, firemen may string hoses and neighbors may rescue your child from your pool if they believe he is in jeopardy of drowning.

People may enter your property to retrieve property or pets if they do so in a reasonable manner. Tearing down your fence would not be considered reasonable.

A person may enter to eliminate a nuisance. Your neighbor, for example, could turn off an exterior faucet that has been left running and is flooding his property.

The trespassing boaters would be liable for any injuries or damageS that occur as a result of the trespass. If one of the boaters damages your seawall, he would be responsible.

You also have a limited duty to trespassing individuals not to cause them harm by reckless, willful or malicious conduct. This is especially true if you know they visit there and you also know that a dangerous situation exists. It is also true of children who might be attracted to your boat launch, even if it is not intended to be one. The launching area could be considered an "attractive nuisance" to children who are considered to have poor judgement.

Consider taking steps to protect yourself and your property. Posting a sign, erecting a fence and/or raising the low area so that it is not convenient for launching boats are solutions to consider.

This information is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.

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