Legal Standing of No Trespassing Signs: All You Need To Know

What is a No Trespassing Sign?

No trespassing signs are common physical landmarks, usually found on residential, private, and commercial properties. Their purpose is to inform the public that the property owner does not want the public to enter the property or that removal of personal property from the site is unwanted and will be monitored by the owner. The common use of a no trespassing sign is to notify the public not to enter the property without permission. Commonly placed at the edge of the property, ranging from very small up to huge structures, no trespassing signs are frequently seen at entrance gates, fences, residences, and commercial buildings of all types and sizes.
Some states have laws regarding no trespassing signage requirements , while others do not. A property owner could literally be trespassed on an unlimited number of times by someone else. By posting a no trespassing sign, a property owner communicates to the trespasser that entry is not permitted if it is marked by that sign. Some states have statutes that inform a trespasser of their liability. However, a trespassing offense is a criminal matter in all states. State laws regarding no trespassing signs vary significantly; it is essential that property owners make sure they are informed of their local requirements so they are not rendered idle in prosecuting a trespasser simply because of faulty signage.

Trespassing Definition in Legal Terms

Defining trespass is relative "to the harm . . . suffered as a result of intrusion upon the land. . . . Id. at 408; Restatement, § 162, comment c. From this definition it can be seen that where no harm results from the intrusion, and there is no fear of harm, then even though a technical trespass has been committed, it may be impossible to prove the necessary element of harm. . . . That is why so many courts have attached to a claim of trespass a requirement of damages. . . . Perhaps the most comprehensive statement of the elements necessary to establish trespass is found in . . . Davis v. Hagey, 2 Grant & Finl. Cas. 764, 775 (1833): "Trespass may be aptly defined, as the unlawful and direct entrance in fact, to the real estate or possession of another, by either person or domestic animal. [Factors deemed irrelevant] It is not essential to the existence of trespass that any damage should have been done; it is sufficient to maintain an action for it, that the party alleging the trespass has been thrown out of possession by the actual and direct entry of another; although the party may have sustained no damage." An unlawful or unauthorized entry on land may give rise to liability even when the entry was originally authorized, if the entry itself exceeds the scope of the authorization. See Restatement, § 164.

Are No Trespassing Signs Legally Enforceable?

Do No Trespassing Signs Have Legal Force?
Ans: Whether or not "no trespassing" signs are legally binding is a somewhat complicated question. In Florida, there is a second degree misdemeanor defined in Florida Statutes section 810.09(1). That statute makes it a crime, but a pretty minor one, to willfully enter on property of another person after receiving actual notice from the owner or lessee of the property that such entry is forbidden. To put it simply, if a private property owner puts up a "no trespassing" sign, and you go on their property anyway without permission from the owner, you will have committed trespass under Florida Statutes section 810.09. However, even if a person is charged with committing that minor crime, public prosecutors often elect not to involve themselves in minor trespass offenses, because who has time to sort out all property lines and enforce minor property disputes when police resources are stretched thin? For that reason, these minor violations of trespass laws are sometimes handled in civil court as a trespass to land cause of action rather than being handled criminally. In civil court, however, the "no trespassing" sign itself doesn’t make a trespasser’s behavior illegal, rather there must be some other factor that makes the trespasser’s behavior unlawful. For example, if the person who put up the sign and the alleged trespasser are involved in an ongoing dispute over property rights, then the trespasser’s behavior may be unlawful even without any statute or ordinance protecting them. At least that’s how I read a decision by the Second District Court of Appeal in Memorial Hospital-West Volusia, Inc. v. Burk, where the trespassing that was the subject of the land trespass lawsuit was loved and widely enjoyed by most people on the planet, but hated by the landowner for reasons relating to a long and convoluted easement dispute with his neighbor. So, in summary, no, "no trespassing" signs are not necessarily legally binding. They are binding in a narrow way that practically only exerts force when there is no reason for the property owner to want something different than what the applicable law requires.

State by State Trespass Laws

Each state sets its own laws related to trespassing on private property and criminal trespassing will not be a crime everywhere in the United States. Some states have squarely dealt with the legal authority of "no trespassing" signs, while others have not. For example, Colorado does not require any signage to establish an individual’s intent to trespass legally. Tennessee, however, expressly provides: "A person commits an offense who knowingly enters an area clearly marked with a notice that the area is a military base or other area specifically described . . . as being prohibited from entering without the owner’s specific consent after notice has been given to the person either orally or by posting in a conspicuous manner in accordance with § 39-14-504." (emphasis added) Utah has also addressed the requirements of a no trespassing sign in its criminal trespass/defense statute: "A person commits the offense of criminal trespass if the person enters or remains unlawfully on the property of another . . . after receiving actual notice prohibiting such entry or remaining; or after receiving notice of the kind described pursuant to Section 76-6-206.5." Again, the statute emphasizes the prospective effect of the no trespassing sign.

Trespassing Penalty for All Ignoring No Trespassing Signs

As with most civil suits, trespassing is usually the least cause of action that most residents may have against unwanted visitors roaming their property. For those that do not abide to the rules set forth in the signs, there are a few different penalties that one must be aware of.
In New York State, for example, it can be quite simple in obtaining a warrant for an individual who trespasses on one’s property to be expelled (provided that the person visited the property multiple times and was warned that they were not allowed back, such as with property that has a "No Trespassing" or "Private Property" sign).
The offer of a verbal or written warning to a trespasser often times will lead them to leave the premises quickly. A written warning may include a notice that once the trespassing individual leaves, they will not be permitted back on the property unless you give them explicit consent to return.
If the individual does not listen to the warning and returns to your property, then they can be arrested for criminal first-degree trespassing, which is considered a misdemeanor, or with criminal second-degree trespassing, which is a class B misdemeanor . Criminal trespassing in the first degree is usually when an individual knowingly and unlawfully enters an enclosed building and remains there without consent in order to commit a crime during the trespassing. This can result in a fine up to $1,000, a jail sentence of less than a year or a combination of both.
Criminal trespassing in the second-degree is when an individual knowingly and unlawfully enters or remains in an enclosed property that is surrounded by fences or any other obstacle to keep people out. This is also a class B misdemeanor, meaning that the individual could face a large fine and be jailed for up to 90 days.
Penalties for ignoring "No Trespassing" signs generally vary from state to state; however, they can become expensive rather quickly. As mentioned previously in our previous installments, it is essential that you consult with a local attorney if you have any questions or plan on filing a complaint or suit about someone who is trespassing on your property.

Posting Effective No Trespassing Signs

The effectiveness of no trespassing signs is largely determined by their placement, wording, and maintenance. Here are some guidelines for making your posting as effective as possible.
Both the language and the execution of a properly posted no trespassing sign can be important to its value as evidence, both to establish the boundary on your property as well as its value in supporting a criminal prosecution or lawsuit:
Unless otherwise authorized by law, a person is guilty of criminal trespass in the third degree when he or she knowingly enters or remains unlawfully in or upon real property.
For the purposes of this section, a person "enters or remains unlawfully" in or upon real property when he or she is no longer licensed, invited, or otherwise authorized to do so.
A person who enters or remains upon an area which is fenced or otherwise enclosed to exclude intruders or which is reasonably calculated to exclude intruders is deemed who enters in or upon such area to be an intruder, except:
(a) entrance by public servants performing their official duties;
(b) entrance by persons entering with the intent to perform a traditional or customary recreational activity, where such activity is permitted by the owner;
(c) entrance upon the land in question which has been opened to the public to some extent.
A person who enters or remains upon premises which clearly have been the subject of a prior communication, either personally or by widely publicized notice, that entry by uninvited persons is prohibited is deemed to enter and remain unlawfully, except as the communication exempts. A communication in writing or by posting in a manner likely to come to the attention of would-be intruders shall be deemed a prior communication within this section. << New York Penal Law § 140.05>>
Location – A no trespassing sign should be placed at the entrance to your property, as well as at points of access from major roadways going into and through your property.
Language – Consider including language related to the potential use of force against trespassers in addition to violating §§ 140.05 and 140.10(1)(b). Strong laws in other states have been used in the prosecution of trespassers who continued to enter property after being warned not to do so. (see Appraising the Effectiveness of No Trespassing Signs: What To Know Before Posting, Reference Desk, Lot Lines: The New York Land Title Blog, September 11, 2017)
For posting in New York here is sample language used in one county: NO TRESSPASSING NO HUNTING, FISHING, OR TRAPPING NO LIVESTOCK NO UNAUTHORIZED HUNTING AUTHORIZED PERSONEL ONLY§ 140.05 NYS Penal Law
Posting – Posting requires significant compliance with the Penal Law that includes size, material and location requirements.

Law Enforcement and Legal Action

When an individual intentionally trespasses on property, there are a myriad of ways in which law enforcement can respond. For example, if a person is physically on a property where they’re not authorized to be, law enforcement can be called to remove the individual. If a trespasser causes damage to property or even threatens the safety of the posted property owner or others, law enforcement can pursue criminal charges against the trespasser. However, trespassing laws and regulations vary widely from one jurisdiction to another. This is why it is so important to understand the specific trespassing laws or ordinances that apply where your property is located.
If someone has violated your posted no trespassing sign, there are a series of steps you can take – depending on the level of harm caused. For example, if you haven’t sustained damage to your property, you may simply want to post more no trespassing signs and perhaps reach out to the individual in question. On the other hand, if you’ve suffered physical damage, or the trespasser is a repeat offender, there are various means of recourse. First, many jurisdictions offer a trespass arrest warning form that can be signed in the presence of a law enforcement officer . This warning constitutes a no trespass order from the local police department and can be posted on the suspected trespasser’s vehicle or even handed directly to the trespasser. In this circumstance, if the same individual violates the no trespass order in the future, law enforcement will have legal authority to arrest them.
Another option is to seek an order of protection, or restraining order, through the local court. Restraining orders are available for a variety of circumstances, not merely domestic violence and harassment. Restraining orders can be used where the danger is ongoing with an Akins or other known trespasser. Once the restraining order is obtained, local law enforcement can immediately suspend the individual’s right to be on or near your property. It will also give you the authority to call local law enforcement to have them removed if they return.
After exhausting these preliminary actions, in some cases it may be necessary to seek further legal intervention. This could include breaking down where applicable local ordinances require that you first exhaust administrative processes (like a trespass warning) before pursuing something like a civil harassment restraining order. Should these efforts fail to deter the unwanted behavior, an experienced attorney can assist you to explore your options.