Elements of Trespass to Land

Under Florida law, trespass to real property is an intentional tort defined as any unauthorized entry onto land in the possession of another. The primary focus is on the violation of the right to exclude others, not necessarily on physical damage. To succeed, a plaintiff must prove two core elements.

1. Plaintiff's Possessory Interest

The plaintiff must prove they either owned or were in lawful possession of the property at the time of the trespass. This right to sue belongs to the party with the legal right to possess the property, which can be a tenant as well as the title-holding owner.

2. Unauthorized Entry by Defendant

The defendant must have intentionally entered the property without the owner's consent or legal authorization. This includes:

Direct physical intrusion by a person.
Causing a tangible object or a third person to enter the land.
Remaining on the land after permission has been revoked.
Failing to remove an object from the land that they have a duty to remove.

The intent required is simply the intent to perform the act that results in the entry. A defendant can be liable for trespass even if they entered under a good-faith mistake that the land was theirs.

Crucially, the plaintiff does not need to prove actual damages. The unauthorized invasion of the property right is itself the injury, entitling the plaintiff to at least nominal damages.

Damages and Remedies

A successful plaintiff in a trespass action can recover several types of damages and remedies designed to compensate for harm and prevent future intrusions.

Compensatory Damages

These damages aim to make the plaintiff whole. The measure depends on the nature of the harm:

Diminution in Value: For permanent damage, the measure is the reduction in the property's fair market value.
Cost of Restoration: For temporary damage, the measure is the reasonable cost to repair or restore the property to its prior condition.
Loss of Use: Compensation for the rental value or lost profits from the property during the period of the trespass.

Nominal Damages

If a trespass is proven but no actual financial loss occurred, the court will award nominal damages (a small sum, e.g., $1) to legally acknowledge the violation of the plaintiff's property rights.

Punitive Damages

Punitive damages may be awarded to punish the defendant for particularly egregious conduct. This requires proving by clear and convincing evidence that the trespass was committed with willful, malicious, or reckless disregard for the owner's rights. A simple mistaken entry will not support punitive damages.

Injunctive Relief

For a continuing or repeated trespass (e.g., an encroaching fence), the property owner can seek an injunction, which is a court order prohibiting the defendant from continuing the trespass.

Defenses to Trespass to Land

A defendant may avoid liability by proving their entry was legally justified or privileged.

Consent

If the property owner gave permission for the entry, no trespass occurred. Consent can be express (stated verbally or in writing) or implied from custom, usage, or the owner's conduct (e.g., a business open to the public implies consent for customers to enter). However, the entry must remain within the scope of the consent given, and consent can be revoked at any time.

Necessity

Entering another's land out of necessity to prevent a more serious harm is a recognized defense.

Public Necessity: A complete defense for entering property to protect the community from a public disaster (e.g., a wildfire). The actor is not liable for any damage caused.
Private Necessity: A limited defense for entering to protect oneself or one's property from serious harm. The actor is excused from the trespass itself but remains liable for any actual damage they cause to the property.

Legal Authority or Privilege

Certain individuals have a legal right to enter private property to perform their duties. This includes law enforcement officers with a warrant, public utility workers maintaining lines, and licensed surveyors. A person entering pursuant to a valid easement is also not a trespasser.

Modern Applications and Special Contexts

Aerial Trespass and Drones

While traditional trespass involves entry onto the land's surface, modern technology has raised questions about airspace. Florida has addressed this directly with the "Freedom from Unwarranted Surveillance Act" (Fla. Stat. § 934.50). This statute prohibits using a drone to record images of private property in violation of a person's reasonable expectation of privacy and provides a specific civil cause of action for victims.

Landlord-Tenant Law

The landlord-tenant relationship is governed by Fla. Stat. § 83.53, which grants a tenant the right to exclusive possession but gives the landlord a limited right of access for purposes like repairs and inspections. A landlord who enters a tenant's dwelling in violation of the statute's notice and time requirements can be liable for trespass.

Trespass to Land in Florida