When Is It Trespassing?
When it comes to abandoned structures, it can be tough to tell exactly when, how and which trespassing laws apply. For one thing, it depends a lot on where that structure is located, because statutes (and enforcement) vary by jurisdiction. "Abandoned" also has a legal definition that doesn't always match the common-use one.
There are some very good clues, though, that can tell you if entering that old graffitied warehouse is against the law. Do you need to scale a fence to get in? You're trespassing. Is there some variation of a "No Trespassing" sign on the premises? You're trespassing. Do you need to break a padlock? You're trespassing. And breaking and entering.
In the absence of such obvious signs, however, some complications arise that can muddy the waters. For instance, just because a building looks abandoned doesn't mean the law sees it as such. From a legal standpoint, abandonment is determined by specific time periods of vacancy, by levels of upkeep and even by an owner's long-term intentions regarding the property.
And then, even if a building meets the legal requirements for abandonment, there can still be an owner. That owner may even be paying monthly abandonment fees to the government [source: NJEsq]. In the absence of a private owner, or if that owner does not abide by abandonment requirements, a structure may fall into the hands of the government as caretaker [source: Livonia].
It is, in reality, a rare abandoned building that has not a single interested authority.
On the other hand, some parts of the typical trespassing statute can work for the potential trespasser. First, the violation hinges on his or her knowledge that the building was off-limits, which the prosecution must prove in court [source: USLegal]. Knowledge or the lack thereof is a tricky thing to prove.
Also in the explorer's favor is this confusing twist: Even in the case of such knowledge, and even when the statute does not set forth abandonment as an exception to the rule, a trespassing statute may (and often does) explicitly allow abandonment to be used as a defense. This basically means that a person entering that vacant warehouse without permission, knowing he or she shouldn't be there, might not in fact be guilty of trespassing if the claim can be made that the warehouse was abandoned and the prosecution can't prove otherwise [source: NJC]. The defense is far from a guaranteed "not guilty," but a judge or jury can consider it when determining whether or not trespassing has occurred (and, if it has, what the penalty should be).
It has been shown to work. In a trespassing case in Seattle in 2012 -- a case involving that early-1900s, vacant, graffitied warehouse and 16 "Occupy" protesters -- the defense succeeded. A judge found that the protesters couldn't be trespassing because the building was abandoned, and she dismissed the case [source: CHS].
This is not something to count on, though. The fact is, in most cases, entering a structure without explicit or perceived permission, even if that structure is abandoned, is considered trespassing, and people caught doing so can face penalties ranging from community service and fines to significant jail time.
Seasoned urban explorers typically know this, and they go in anyway. For some, the call of the forgotten past is just worth the risk.
For more information on urban exploration, trespassing and the full range of related risks, check out the links below.
Author's Note: Is it legal to explore abandoned buildings?
Without a doubt, urban exploration is an intriguing undertaking, its motives often emotional, artful and of academic interest, its products often beautiful and revealing. And yet, the mentions of danger in this series are there for a reason: This intriguing practice is unsafe.
And often illegal, but many people will brush that off -- and really, what's a misdemeanor trespassing charge in the face of abandoned crypts and asylums? Bodily harm, though, is something different (I think), and my hope is that readers who are interested in urban exploring will also be interested in the physical risks involved. Death and injury in the course of exploring are not everyday occurrences, but neither are they so rare as to chalk them up to simple bad luck. Storm drains do flood unexpectedly. Unmaintained, century-old staircases do crumble. Open elevator shafts do disappear in dark, abandoned warehouses.
Do, then, keep in mind: There are many reports of urban-exploring deaths and near-misses. I just ran out of room.
- "Affirmative defense." Legal dictionary. The Free Dictionary. (Oct. 16, 2012) http://legal-dictionary.thefreedictionary.com/Affirmative+Defense
- "Charges dropped against 16 occupiers of abandoned Capitol Hill building." CHS Capitol Hill Seattle Blog. June 5, 2012. (Oct. 16, 2012) http://www.capitolhillseattle.com/2012/06/05/charges-dropped-against-16-occupiers-of-abandoned-capitol-hill-building
- "Chase 5 found not guilty of trespassing in Broadway bank protest – UPDATE." CHS Capitol Hill Seattle Blog. March 16, 2012. (Oct. 16, 2012) http://www.capitolhillseattle.com/2012/03/15/chase-5-found-not-guilty-of-trespassing-in-broadway-bank-protest
- "Criminal Trespass." New Jersey Courts. Oct. 1, 2001. (Oct. 16, 2012) http://www.judiciary.state.nj.us/criminal/charges/crimtres1.doc
- Maher, Jared Jacang. "An Urban Explorer Gone." Westword. Dec. 20, 2007. (Oct. 18, 2012) http://www.westword.com/2007-12-20/news/gone/
- "Misdemeanor Trespassing." Misdemeanor Guide. (Oct. 16, 2012) http://misdemeanorguide.com/Misdemeanor-trespassing.php
- "Trespassing in New Jersey." New Jersey Esq. (Oct. 16, 2012) http://newjerseyesq.com/nj-criminal-law/trespassing-in-new-jersey/
- "Trespass: Criminal Liability." US Legal. (Oct. 16, 2012) http://trespass.uslegal.com/criminal-liability/
- "Vacant and Abandoned Structure." The City of Livonia, Michigan. Oct. 8, 2009. (Oct. 16, 2012) http://www.ci.livonia.mi.us/Departments/Inspection/VacantandAbandonedBuildingOrdinance2844.aspx