If you enter private property without the owner's permission or enter portions of public property that are off limits to the public, you could be liable for civil or criminal trespass. For example, you may not walk into your neighbor's house uninvited, sneak into your congressperson's office, or pretend to be a public official to gain access to someone else's property.
In general, if you are invited onto someone's property or otherwise have permission to be on the property, you will not be considered a trespasser. If you are asked to leave, however, you may be trespassing if you refuse to do so.
Seeking Consent to Enter Property
You should make sure that you get consent before entering someone else's property. This consent must come from the individual, group of individuals, or business entity that is in possession of the property. In many cases this means that you need to get the owner's consent. However, if you want access to leased property, you must get the lessee's consent. Thus, a resident of an apartment complex can invite you into their apartment and you will not be considered a trespasser even if the landlord or owner objects to your presence. Conversely, if the owner gives you permission to access the resident's apartment and the resident declines to do the same, you may be liable for trespass if you enter the resident's property.
In some cases you'll be able to get express consent (verbal or in writing) from the person in possession of the property. In other cases you may believe you have the person's implied consent for your ability to enter her property. This type of situation occurs when:
- the person is not present, but your prior contact with the person leads you to believe that you can enter her property without express permission; or
- you don't ask for permission, and the person keeps silent during your visit to her property.
If you rely on implied consent, you may find it difficult to defend yourself if you are charged with trespassing. You will need to show that a reasonable person in the same situation would have believed that there was implied consent based upon the conduct of the person in possession of the property and the overall circumstance.
Scope of Consent
If you have a right to be present on private or public property you will not be trespassing if your use of the property is consistent with your right to be there. Make sure you understand the scope of the permission you've been given and stay within its boundaries.
For example, you generally have a right to attend, and report on, court hearings, legislative sessions, and some governmental meetings. You can learn more about these rights in our section on Access to Government Information, Electronic Records, Meetings and Public Spaces. However, you have no right to enter a judge's chambers located in the courthouse, or private offices in the same building hosting the legislative sessions and other governmental meetings.
Misrepresenting yourself in order to gain consent
You may want to engage in investigative reporting tactics in order to inform the public about improper business practices or governmental wrongdoing, and thus may feel the need to misrepresent yourself in order to gain the necessary consent. If you do so, you may find yourself facing charges of trespass on the basis that your misrepresentation vitiated the consent given to you.
For example, in Food Lion v. Capital Cities/A.B.C., two ABC journalists falsified their resumes, and became employees of Food Lion grocery stores. 194 F.3d 505 (4th Cir. 1999). The two journalists gained access to areas of the store that were off limits to the general public and used hidden cameras to record unsanitary meat handling practices. The appellate court upheld a jury verdict finding the journalists liable for trespass on the basis that the journalists had breached their duty of loyalty to their employer, Food Lion.
In a second case involving ABC, however, a court did not hold ABC liable for trespass because it concluded that ABC's employees did not actually interfere with the owners possession or use of the property. Desnick v. American Broad. Cos., 44 F.3d 1345 (7th Cir. 1995). In Desnick, two ABC employees posed as patients and requested eye examinations at Desnick's eye clinics. The employees used hidden cameras and recorded the eye examinations which were subsequently used for a news story about the care and advice received at Desnick's eye clinics. Despite the ABC employees' misrepresentation of themselves as patients, the court declined to hold ABC liable for trespass because the eye clinics were open to the public, and the ABC employees did not interfere with Desnick's ownership or possession of his property.
Other issues may also come into play when you misrepresent yourself, such as laws against posing as a public official. Given the complexity of the caselaw, if you feel that you must conceal your identity in order to access property, you should get legal assistance to avoid claims of trespass (as well as other claims like fraud and invasion of privacy). Refer to the section on Finding Legal Help in this guide for more information.