No Trespassing! Simple Advice for Future Protection

Many of my company’s clients have a second home in a remote location and they often ask, “Is it wise to post ‘No Trespassing’ signs?” The short answer is yes. I usually follow up with the ‘why’ in order to overcome the objections voiced by most individuals, who do not want to put forth the effort to post ‘No Trespassing’ signs properly.

In addition, the laws regarding trespassing are state specific. My comments are general in nature, and more specific guidance should be obtained from an attorney in your jurisdiction.

My concerns regarding trespass fall into two general categories: liability and conveyance. Liability is easily understood, if someone is hurt on your property, you may be liable. Conveyance is a more difficult topic to understand and is the one I routinely encounter in my practice.

There are two types of liability claims, which may be made against a landowner by someone who is trespassing on the landowner’s property: strict liability and negligence.  An example of strict liability would be the following: you have a lake on your property, which you have chemically treated for aquatic weeds and a trespasser swims in the lake and receives chemical burns. The landowner has liability because it was the landowner, who treated the lake with the chemicals.

Negligence is a much broader concept. Let’s return to the example of the lake on your property. There may be a bridge on the property that spans a stream which runs into the lake. While walking across the bridge, a trespasser falls through a rotten board and is injured. The landowner has liability for negligence in the upkeep of the bridge.

Typically, conveyance is a written document, which transfers, or conveys, a real estate interest from one party to another. It is a deliberate and voluntary act. However, a property, or an interest in a property, may be involuntarily conveyed. Let’s return to the lake on your property; in your absence someone continually uses the lake for fishing.  You are aware of the matter, and as the landowner you must take some action to prevent the fishing. If you do not, you have involuntary conveyed your interest to another.

A first step in protecting yourself from liability (strict or negligence) and an involuntary conveyance is to post ‘No Trespassing’ signs. The signs you post should be conspicuous and well maintained. In fact, posting the signs should be a part of the seasonal maintenance of your property. Additionally, I suggest a written release for individuals you allow onto your property. The release establishes a precedent in the event of litigation. So much for a long story short, but I think you get the point.

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