© 2013 LyannV

Driving Issues: Trespass Law, Briefly

Trespassing is a legal term that refers to a variety of offenses against a person or against property. A person who enters private property without the owner’s permission or who enter areas of public property off-limits to the public could be held liable for civil or criminal trespass.

A person must knowingly go onto private property without permission to be considered a trespasser. Knowledge may be inferred when a property owner tells a person not to go on the property, when the property is fenced, or when a “no trespassing” sign is posted.

“Private property” encompasses businesses open to the public as well as homes. A person who enters a private home without permission may be liable for invasion of privacy, trespass, and, in some cases, intentional infliction of emotional distress.

As a member of the public a person may access businesses open to the public without fear of liability, although right of access does not necessarily translate into a right to gather information while there.

Permission granted by security to photograph interior of Crossroads Mall in Oklahoma City, Oklahoma ©Lyann Valadez

Permission granted by security to photograph interior of Crossroads Mall in Oklahoma City, Oklahoma
©Lyann Valadez

Shopping malls are arguably public rather than private in nature. But, shopping malls are privately owned places of business and there is no constitutional right to free speech in a private shopping mall. Since the Supreme Court’s decision in PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), the law of access to shopping malls has largely been left to the states.

State courts vary on the question of whether to allow access to shopping malls and most owners may impose reasonable time, place and manner restrictions on expression.

Luis Diaz of Eagle 1 Security at Crossroads Mall in Oklahoma City, Oklahoma, states that the mall has a written code of conduct for visitors. Diaz says “people come here to enjoy themselves and we rarely have a problem we need to interfere with.”

Another Crossroads Mall security officer, who asked not to be named stated, “sometimes we have people who want to come take pictures, to get the layout of the place and write articles portraying the mall in a bad light.” He adds, “usually there is not a problem if they ask permission first.”

The Crossroads Mall written policy states that photographing or videotaping any person or entity on the property is not allowed without the consent of the subject. Persons who violate any provision of the policy will be asked to leave, and those who refuse will be arrested.

Oklahoma trespass law states that anyone who enters private agricultural land must have permission to enter or will be guilty of trespassing.

Questionable trespass in rural Oklahoma ©Lyann Valadez

Questionable trespass in rural Oklahoma
©Lyann Valadez

As of November 1, 2006, landowners in Oklahoma are no longer required to post “no trespassing” signs and the burden is upon the person entering a property to prove he or she had permission.

A person would not likely be prosecuted for trespassing on property that is open land, if the person’s conduct did not substantially interfere with the owner’s use of the property, and if the person left the property immediately on request.

It is important to get consent before entering someone else’s property.  Consent must come from the individual, group of individuals, or business entity in possession of the property. In many cases it is necessary to get the owner’s consent.

In some cases it is possible to receive express verbal or written consent property, while in other cases it is possible to rely on a person’s implied consent to enter a property. Implied consent occurs when:

  • the person is not present, but prior contact with the person leads to the belief that it is permissible to enter a property without express permission; or
  • permission is not requested, but the person keeps silent during your visit to the property.

When relying on implied consent, it may difficult to defend against charges of trespassing. It would be necessary to show that a reasonable person would have believed that there was implied consent in the same situation based upon the conduct of the person in possession of the property and the overall circumstance.

Trespass laws are based on the premise that no one has any right to enter the private property of others without their consent. Generally, a person who is invited onto someone’s property or otherwise have permission to be on the property will not be considered a trespasser. Once asked to leave, however, it may be trespassing to refuse to do so.

*This site is not intended for, nor was it created to provide any type of legal advice. If you have any questions about the law, contact an attorney. Photo ©Lyann Valadez

*This website is not intended for, nor was it created to provide any type of legal advice. If you have any questions about the law, contact an attorney.
Photo ©Lyann Valadez

 

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