One of the most common problems faced by owners who have not occupied their property or not let out on rent is the problem of trespassing. A property that has been left unattended for a long time attracts attention of trespassers whose intent is to illegally occupy the property and finally grab it.
“After partition of our ancestral land in our home town, we were in no urgency to sell it or construct anything on it. On our next trip to our home town two years later, and we saw a small shop set up on our land with a person selling logs of wood. There was also a small pond created on another area of our land for rearing fish. When asked to vacate the land, the shopkeeper mentioned that our relative, who also got a land parcel in the partition and owned the land neighbouring ours, had informally rented our property,” said Nagalakshmi, a senior citizen owner of a 46 cents land in Karnataka. While he vacated the shop when we were staying there for three days. He also threatened to take our entire land going forward since he is a local and we don’t stay there. We have engaged a lawyer to first get the trespasser vacated and then sell the land so that we don’t have to face such problems.”
Unauthorised physical intrusion into another person’s property is known as trespassing. This illegal entry can be momentary or can last for an extended period of time and in turn take a dangerous turn. As the act of trespassing violates a person’s property rights, there can be legal ramifications in case the issue doesn’t get solved amicably. Note that trespassing can be booked in both civil and criminal cases in India. In order to defend their rights, property owners should be well aware about the laws surrounding trespassing on property. In this guide, we detail about trespassing and the legal actions that can be taken.
What are the different types of trespassing?
There are three different types of trespassing:
- Trespass to land: The most common form of trespassing in an immovable property, this is done by walking and staying in someone’s land, keeping their belongings in some other person’s property or obstructing entry to a person’s property by placing objects at the entrance.
- Trespass to person
- Trespass to goods
Trespassing on public property vs private property
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- Public property: If a government owned land which is public property, municipal bodies can evict the unauthorised occupation of trespassers.
- Private property: In case a private property is occupied by trespassers, one has full rights to prevent trespassers and take legal action.
Legal steps to protect your property from trespassing
Mentioned are four steps to follow to protect your immovable property from trespassers.
Send a legal notice
If you are sure that someone is trespassing your property, then you should start by sending a legal notice that warns the trespasser to vacate the property immediately or face the consequences that will follow. “
Police complaint
In case of a criminal trespass, one should file a police complaint at the nearest police station. Supporting documents such as photos, videos, property papers etc. will serve as evidence to the police complaint.
File a civil suit
If the trespassing continues, one can also file a civil suit that will act as an injunction to stop trespassing and claim compensations for the loss incurred.
Criminal suit
In case the trespasser indulges in threats, unlawful occupation, damages etc. the trespasser can be tried for criminal charges under The Bharatiya Nyaya Sanhita, 2023 (BNS) Section 329. In case of any problem faced, the court can issue arrest warrants.
Points that the prosecution should prove to convict a trespasser
To convict a person as criminal trespasser, one has to prove
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- Entry: Forceful and illegal entry of the accused on the property
- No consent: The person entered the property with no consent from the owner of the property
- Intent: The person’s intent was to illegally occupy the owner’s property, annoy and insult him.
When is a person not a trespasser?
Mentioned below are reasons why a person is not a trespasser.
License: If a person has a license to enter the property then he is not a trespasser.
Person staying with consent: A person entering a person’s property with consent from the owner, then he is not a trespasser.
Necessary entry: If there is any emergency and a person needs to enter the property, he is not a trespasser.
Different sections under which a person can be booked for trespassing
Under the Indian Penal Code (IPC), 1860, criminal trespassing is tried under Sections 441 to 462.
- Criminal trespass- Section 441: When someone purposefully enters and stays on a property belonging to someone else with an intention to cause harm to that person by annoying, intimidating him etc.
- House trespass Section 442: This involves unlawful entry into a person’s property.
- Lurking house-trespass Section 443: This happens when someone does a house trespass
- House-trespass by night (Section 444): This is recorded when trespassing is done at night.
- Housebreaking (Section 445): This is entry or exiting a house by forceful or deceptive means.
| Types of trespass | Imprisonment | Fine | |
| Simple trespass
Section 447 |
Upto three months imprisonment | Fine of Upto Rs 500 | Both |
| House trespass
Section 448 |
Upto one year imprisonment | Fine of Upto Rs 1,000 | Both |
| Lurking-house trespass Section 454 | Upto three years imprisonment | Fine | Both |
| House breaking trespass Section 455 | Upto two years imprisonment | Fine | Both |
Note that severe crime like house –breaking trespass at night may attract stringent actions. Even if no crime takes place, the property owner can take damages.
Can a trespasser claim your property?
It is very possible that a trespasser can claim your property by way of adverse possession. A trespasser can claim a property through adverse possession under Article 65 of the Limitation Act, 1963.
Adverse possession is possible if a person proves that
- The property was occupied without owner’s permission
- It is physically used and controlled by them
- Stayed in the property without any break for 12 years
- The occupancy is open and is not hidden
- The property is exclusively used by the trespasser and not in partnership with the owner
In case no legal action is taken, then the trespasser can take ownership of the property and the owner’s rights will cease to exist.
How to protect your property from trespassers?
To protect your property, owners are recommended to take the following steps:
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- Marking boundaries: It is recommended to mark the boundary of the immovable property and ensure that it is locked safely in case of no occupancy. Boards like private property, no trespassing etc. are recommended.
- CCTV setup: The immovable property when not occupied should be under CCTV surveillance so that the owner can monitor the property continuously and take action in case of any problem.
- Get an injunction: In case of repeated trespassing incidents, a property owner can get court orders to prevent trespassers from unlawful entry.
What can be done if a false case of trespassing is filed against you by the owner?
If a false case of trespassing is filed against an innocent person, he can take legal action against it to undo the charges. Additionally, a defamation case can be filed for monetary damages. One has to prove that the case is false. To start with, one can file a criminal complaint against the person who has filed the false case. Under Section 482 of the Code of Criminal Procedure, 1973, one can approach the court to quash the false complaint.
Housing.com POV
Property rights of an owner is compromised by the act of trespassing and has to be dealt with seriously to protect rights of property owners. In India, civil and criminal laws help protect the interests of the property owners. Owners can seek injunctions, take legal actions and also claim damages. In case you are a victim of trespassing on your property, you should report it immediately so that action can be taken at the earliest. In case of any delay, you may also face the risk of losing your land.
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