Owning or renting real estate comes with two significant advantages for the property owner or lessee. First, you can determine who is welcome upon your land. Second, and more importantly, you can determine who is NOT welcome on your land. Trespassers who knowingly walk upon another person’s property without permission can be subject to civil and criminal penalties.
CRIMINAL TRESPASSING
A person is prohibited from doing any of the following:
- “Enter the lands or premises of another without lawful authority after having been forbidden to do so by the owner or occupant or the agent of the owner or occupant.” MCL 750.552(1)(a).
- “Remain without lawful authority on the land or premises of another after being notified to depart by the owner or occupant or the agent of the owner or occupant.” MCL 750.552(1)(b).
- “Enter or remain without lawful authority on fenced or posted farm property of another person without the consent of the owner or his or her lessee or agent. A request to leave the premises is not a necessary element for a violation of this subdivision. This subdivision does not apply to a person who is in the process of attempting, by the most direct route, to contact the owner or his or her lessee or agent to request consent.” MCL 750.552(1)(c).
The trespassing statute DOES NOT apply to a process server who is on the land or premises of another while in the process of attempting, by the most direct route, to serve process upon an owner or occupant of the land or premises, an agent of the owner or occupant of the land or premises, or a lessee of the land or premises. MCL 750.552(2).
A person who commits criminal trespassing is guilty of a misdemeanor conviction punishable by a fine up to $250.00 or up to 30 days in the county jail, or both. MCL 750.552(3).
CIVIL TRESPASSING
“Recovery for trespass to land in Michigan is available only upon proof of an unauthorized, direct or immediate, intrusion of a physical, tangible object onto land over which the plaintiff has a right of exclusive possession.” Adams v Cleveland-Cliffs Iron Company, 237 Mich App 51, 67; (1999). “Once such an intrusion is proved, the tort has been established, and the plaintiff is presumptively entitled to at least nominal damages.” This is a cause of action available in the State of Michigan where the property owner can sue for money damages, but the plaintiff must be able to prove the following:
- PHYSICAL TANGIBLE OBJECT: Tangible objects are those that can be touched or have physical elements. Id at 69. This can be a person walking on the property by foot or in a vehicle and this can be a person causing unwanted objects to be placed upon the property (e.g. throwing foreign objects, depositing dirt piles or garbage, etc.). However, noise and vibrations do not give rise to a trespass action (although these may give rise to a nuisance claim). Id at 69. Dust, despite being a physical object, also does not normally present itself to be a significant physical intrusion and would be actionable under a nuisance claim. Id at 69-70.
- DIRECT OR IMMEDIATE INTRUSION: A “direct or immediate” intrusion “for purposes of trespass is one that is accomplished by any means that the offender knew or reasonably should have known would result in the physical invasion of the plaintiff’s land.” Id at 71. For example, if someone sets an object in motion at the top of the hill and he or she should reasonably know that this object would likely end up on the landowner’s property at the bottom of the hill, then a trespass has taken place even if not completely intentional.
At a minimum, the plaintiff can be awarded nominal damages amounting to less than $100.00. A plaintiff successful in a trespass action is entitled to actual damages caused by the trespass. Id at 72.
In addition, any person who enters someone else’s property and:
- (a)“cuts down or carries off any wood, underwood, trees, or timber or despoils or injures any trees on another’s lands, or”
- (b) “digs up or carries away stone, ore, gravel, clay, sand, turf, or mould or any root, fruit, or plant from another’s lands, or”
- (c) “cuts down or carries away any grass, hay, or any kind of grain from another’s lands without the permission of the owner of the lands, or on the lands or commons of any city, township, village, or other public corporation without license to do so…”
“[I]s liable to the owner of the land or the public corporation for 3 times the amount of actual damages.”
“If upon the trial of an action under this provision or any other action for trespass on lands it appears that the trespass was casual and involuntary, or that the defendant had probable cause to believe that the land on which the trespass was committed was his own, or that the wood, trees, or timber taken were taken for the purpose of making or repairing any public road or bridge judgment shall be given for the amount of single damages only.” MCL 600.2919(1)(c).
RECREATIONAL TRESPASSING
There is no exception for hunters, trappers or fishers that trespass upon someone else’s property:
- “[A] person shall not enter or remain upon the property of another person, other than farm property or a wooded area connected to farm property, to engage in any recreational activity or trapping on that property without the consent of the owner or his or her lessee or agent, if either of the following circumstances exists: (a) The property is fenced or enclosed and is maintained in such a manner as to exclude intruders OR (b) The property is posted in a conspicuous manner against entry. The minimum letter height on the posting signs shall be 1 inch. Each posting sign shall be not less than 50 square inches, and the signs shall be spaced to enable a person to observe not less than 1 sign at any point of entry upon the property.” MCL 324.73102(1).
- “[A] person shall not enter or remain upon farm property or a wooded area connected to farm property for any recreational activity or trapping without the consent of the owner or his or her lessee or agent, whether or not the farm property or wooded area connected to farm property is fenced, enclosed, or posted.” MCL 324.73102(2).
- “On fenced or posted property or farm property, a fisherman wading or floating a navigable public stream may, without written or oral consent, enter upon property within the clearly defined banks of the stream or, without damaging farm products, walk a route as closely proximate to the clearly defined bank as possible when necessary to avoid a natural or artificial hazard or obstruction, including, but not limited to, a dam, deep hole, or a fence or other exercise of ownership by the riparian owner.” MCL 324.73102(3).
- “A person other than a person possessing a firearm may, unless previously prohibited in writing or orally by the property owner or his or her lessee or agent, enter on foot upon the property of another person for the sole purpose of retrieving a hunting dog. The person shall not remain on the property beyond the reasonable time necessary to retrieve the dog.” MCL 324.73102(4).
“The owner of property on which a violation of this part is committed, or his or her lessee, may bring a cause of action against an individual who violates this part for $750.00 or actual property damages, whichever is greater, and actual and reasonable attorney fees.” MCL 324.73109. In addition, “[a]n individual who violates this statute is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not less than $100.00 or more than $500.00, or both.” MCL 324.73110(1). “An individual convicted of a second or subsequent violation of this part occurring within 3 years of a previous violation of this statute shall be punished by imprisonment for not more than 90 days or a fine of not less than $500.00 or more than $1,500.00, or both. In addition, the court may order the individual’s license revoked if the individual is licensed to hunt, fish, or trap in this state, and may order the individual not to seek or possess a license for not more than 3 succeeding calendar years.” MCL 324.73110(4).
TRESPASSING BY DOGS
Any dog that enters any field or enclosure which is owned by or leased by a person producing livestock or poultry, outside of a city, unaccompanied by his owner or his owner’s agent, shall constitute a trespass, and the owner shall be liable in damages. MCL 287.279. If a neighbor or other local resident signs a complaint to the police indicating that “[a] dog, licensed or unlicensed, has destroyed property or habitually causes damage by trespassing on the property of a person who is not the owner”, then the dog owner may be required to show cause in court why the dog should not be killed. MCL 287.286a(1)(b). “After a hearing the district court magistrate or the district or common pleas court may either order the dog killed, or confined to the premises of the owner.” MCL 287.286a(2).
TRESPASS BY ORV (OFF-ROAD VEHICLE) OR SNOWMOBILE
“An individual shall not operate an ORV in or upon the lands of another without the written consent of the owner, the owner’s agent, or a lessee, when required by law. The operator of the vehicle is liable for damage to private property caused by operation of the vehicle, including, but not limited to, damage to trees, shrubs, or growing crops, injury to other living creatures, or erosive or other ecological damage. The owner of the private property may recover from the individual responsible nominal damages of not less than the amount of damage or injury. Failure to post private property or fence or otherwise enclose in a manner to exclude intruders or of the private property owner or other authorized person to personally communicate against trespass does not imply consent to ORV use.” MCL 324.81133(h).
A person who violates this law is also guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not less than $250.00 or more than $1,000.00, or both, for each violation. MCL 324.81147(2). “ In addition to the penalties otherwise provided under this [statute], a court of competent jurisdiction may order a person to restore, as nearly as possible, any land, water, stream bank, streambed, or other natural or geographic formation damaged by the violation of this part to the condition it was in before the violation occurred.” MCL 324.81147(5). “The [Department of Natural Resources] or any other peace officer may impound the ORV of a person who commits a violation of this [statute] that is punishable as a misdemeanor or who causes damage to the particular area in which the ORV was used in the commission of the violation.” MCL 324.81147(6).
A person is also prohibited from operating a snowmobile without permission on someone else’s private property and is liable for any damage caused therefrom. MCL 324.82126. A person who violates these provisions is guilty of a misdemeanor. MCL 324.82133.
FIGHTING TRESPASS CLAIMS IN COURT
Trespass is a very low-level criminal offense in Michigan and is not aggressively pursued by police officers or prosecutors. However, there are civil remedies available and a skilled lawyer can help you pursue this relief. Our law firm understands that your property rights are very important and they are only as valuable as your willingness to enforce them. We will help you every step of the way.
If you have any questions about property law or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
