Trespass in DC

What is a Trespasser?

“A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise.” (See Boyrie v. E & G Prop. Servs. (2013) 58 A.3d 475, 477-78; Firfer v. United States (1953) 208 F.2d 524, 528.)

“Authorization to enter property can be express or implied.” (See id. [licensee by invitation is one invited upon the land ... by some affirmative act or by appearances which would justify a reasonable person in believing that such landowner (or occupant) had given his consent to the entry of the particular person or of the public generally].)

“One may also be lawfully on premises by mere sufferance or acquiescence of the landowner, as where the landowner has not objected to a general or customary use of the premises.” (See id; Restatement (Second) of Torts § 331, cmt. a.1 (1965) [defining ‘gratuitous licensee’].)

Key Requirement for Successful Claim of Trespass

“The tort of trespass is defined as an unauthorized entry onto property that results in interference with the property owner's possessory interest therein.” (See Greenpeace, Inc. v. Dow Chem. Co. (2014) 97 A.3d 1053, 1060; Sarete, Inc. v. 1344 U St. Ltd. P'ship (2005) 871 A.2d 480, 490.)

“Consequently, a recognized possessory interest is the ‘key requirement’ for a successful claim of trespass. A ‘possessory interest’ is defined as [t]he present right to control property, including the right to exclude others, by a person who is not necessarily the owner.” (See id; Black's Law Dictionary 1203 (8th ed.2004); see also Fortune v. United States (1990) 570 A.2d 809, 811.)

Duty of Care to a Trespasser

“For duty of care purposes, a trespasser is one who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise.” (See Toomer v. William C. Smith & Co. (2015) 112 A.3d 324, 328; Boyrie v. E & G Prop. Servs. (2013) 58 A.3d 475, 477-78; Firfer v. United States (1953) 208 F.2d 524, 528.)

“Thus a person entering pursuant to a lawful privilege is not a trespasser under D.C. law.” (See id; Saidi v. United States (2015) 110 A.3d 606, 611–12 [stating that a person entering land in exercise of a private necessity privilege is not a trespasser].)

“This mirrors section 345(1) of the Restatement (Second) of Torts (1965), which provides that a person “who enters the land only in the exercise of a privilege, for either a public or private purpose, and irrespective of the possessor's consent, is entitled to the standard of care of a licensee.” (See id.)