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Trespass of a Dwelling

Trespass occurs whenever an individual willfully enters or remains on property other than a structure or a conveyance, which means a dwelling, without being authorized, licensed, or invited when either:

  • Notice is given by actual communication to the arrested trespasser or by proper posting, fencing, or cultivation under Florida criminal law, or
  • If the property is the “unenclosed curtilage” and the individual remains with the intent to commit a criminal act, other than trespass

If the trespass occurred near a dwelling, the courts will look to see how close you were to the “unenclosed curtilage” of a dwelling. The term “unenclosed curtilage” means the unenclosed land or grounds, and any outbuildings that are directly and intimately adjacent to and connected with the dwelling.
Trespass on a structure other than a structure or conveyance is a misdemeanor of the 1st degree punishable by up to 364 days in the county jail and a $1,000.00 fine. Florida Criminal Statute 810.09.

There are many defenses to Trespass on a Property Other Than a Structure or Conveyance including:

  • Willfulness – The trespass must be willful! Reasonable mistake is a defense! Courts measure willfulness by what the arrested person was thinking/intent proved by objective facts
  • Consent – If you were given permission to enter onto the property then you have a defense. Consent can come in many forms! (express, implied, constructive)
  • Necessity – the arrested person needed to use the property for a justifiable purpose
  • Notice – was the posting on the property legally sufficient under Florida law to put the individual on notice that they were trespassing?
  • Authorization – Was the person who gave the notice to leave authorized to do so and did that person or police officer have the authority to give the order to vacate under Florida criminal law?
  • Other defenses may be available depending on the specific facts of your case.

Trespass can be also be a more serious felony criminal offense. Click below for more information on these types of crimes:

Each case is different and unique based upon the individual facts of your case. Do not let a criminal charge or criminal conviction affect your employment, education, or future. Call now to set up your free consultation so I can answer any questions you may have regarding your criminal case.
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Can you shoot a trespasser in Florida?
Yes, you can shoot a trespasser in Florida. Under their Stand Your Ground law, “a person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to have no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”
What is the difference between trespass and nuisance?
There’s a major difference between trespassing and nuisance. One commits civil trespass when they get onto someone’s property without the consent of its landowner. However, when a trespasser, especially a child, entered a property and got injured by an object or feature on the defendant’s land that is likely to attract children, the property owner would still be accountable under the attractive nuisance doctrine.
Is it trespassing if it’s not posted?
It is still trespassing even if it’s not posted. Even though landowners are not required to post “no trespassing” signs on their properties, it is still advisable that you have them in place to explicitly express your intent to keep your land to yourself and to ensure that you have more legal recourse in the event of a trespassing incident.