Understanding Trespassing And Right Of Way In Virginia Law

Trespassing in Virginia is a criminal offense that can result in misdemeanor or felony charges, depending on the specific circumstances. The state's trespassing laws are designed to protect property owners' rights and maintain public safety by prohibiting unauthorized entry or presence on another person's property. The laws also outline the authorized use of such property.

Virginia Code § 18.2-119 defines trespassing as entering or remaining on someone else's property without permission or after being explicitly told to leave. This can be communicated through various means, including personal invitations, oral or written notices, or public signs. To convict an offender of trespassing, the Commonwealth must prove that the offender intentionally entered the property without permission and had notice that they were not allowed on the premises.

Virginia Code § 18.2-119 also specifies that trespassing is a Class 1 misdemeanor, punishable by up to 12 months in jail and a fine of up to $2,500. However, if the trespasser intentionally selected the property based on the owner's race, religion, color, or ethnicity, the offense is upgraded to a Class 6 felony, with potential penalties of up to 5 years in prison and a minimum of 6 months' active sentence.

In addition to general trespassing laws, Virginia also has specific statutes addressing trespassing in various locations, such as schools, churches, cemeteries, hunting and fishing areas, and transportation systems. These laws outline different penalties for trespassing in these locations, ranging from fines to jail time.

Understanding the nuances of trespassing laws in Virginia is crucial, as individuals can face charges even if they did not intend to break the law. Consulting with an experienced attorney can help individuals navigate the legal process and build a strong defense tailored to their specific situation.

Trespassing laws in Virginia

Trespassing in Virginia is defined as entering someone else's property without permission or remaining on the property after being told to leave. Typically, accidentally going onto someone else's property is not considered trespassing. However, a clearly posted "no trespassing" sign or a fence may be used in legal action to prove that the person knowingly entered someone else's property.

Virginia has a variety of criminal trespass laws, which are separated by circumstances surrounding the act of trespassing. For example, there are different laws for trespassing on a cemetery at night, trespassing on a church or school property, and trespassing by hunters or fishermen.

Trespassing in Virginia is classified as a misdemeanour or felony, depending on the offence. Both may be punishable by fines, imprisonment, or both, and, in certain cases, revocation of sporting licenses.

Trespassing After Having Been Forbidden (Va. Code §18.2-119)

Trespassing After Having Been Forbidden is a Class 1 misdemeanour, which carries a penalty of up to 12 months in jail and/or a fine of up to $2500. The offence can be committed in several ways, including:

• Entering another person's land without permission
• Remaining on another person's property after being told to leave
• Entering property posted with "no trespassing" signs, without permission
• Entering property in violation of a protective order

To convict an offender of trespass in Virginia, it must be proven that the offender intentionally entered the land of another without permission. This requires proof that the offender was on the land of another, without permission, and had notice that they were not allowed on the property. This notice can be given orally or in writing, or by posted signs that are reasonably visible.

If the trespasser intentionally selected the property based on race, religion, colour, or ethnicity, the offence is escalated to a Class 6 felony, which is punishable by one to five years in prison.

Encouraging or Soliciting a Virginia Trespass (Va. Code §18.2-120)

Even if a trespass does not occur, a person can be charged with trespassing if they encourage, urge, solicit, or instigate a trespass by another person. This is a Class 1 misdemeanour, which is punishable by up to 12 months in jail and/or a fine of up to $2500.

Disorderly Trespass (Va. Code §18.2-121)

Entering the property of another in a way that breaches the peace or threatens a breach of the peace is considered Disorderly Trespass and is a Class 1 misdemeanour.

Trespassing on School Property (Va. Code §18.2-128(A))

Trespassing on school property or a school bus at night is a Class 3 misdemeanour, punished with a fine of up to $500.

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What constitutes trespassing

Trespassing in Virginia involves entering someone else's property without permission or overstaying one's welcome by remaining on the property after being told to leave. This can occur in a variety of ways, including:

• Entering another person's land without permission
• Remaining on another person's property after being asked to leave
• Entering property with "No Trespassing" signs posted without permission
• Entering property in violation of a protective order

The Commonwealth must prove that the offender was given notice that they were not allowed on the property. This notice can be communicated orally or in writing by the owner, lessee, custodian, or agent in charge of the property. It can also be given through posted signs that are reasonably visible.

Virginia trespassing laws do not apply to areas of general public access or publicly owned buildings unless the person enters or remains on the property for reasons unrelated to its function. Entering or remaining on such property and disrupting its function may also be considered trespassing.

Trespassing in Virginia is a serious offense and can lead to various legal consequences, including being charged with a Class 1 misdemeanor, punishable by up to 12 months in jail and a fine of up to $2500. If the trespasser intentionally chose the property based on race, religion, color, or ethnicity, the offense is elevated to a Class 6 felony, with potential penalties of up to 5 years in prison and a minimum of 6 months, including 30 days of mandatory active sentencing.

Penalties for trespassing

Trespassing on someone's property in Virginia can result in a variety of penalties, depending on the specific circumstances and location of the trespass. Here are some key points regarding the penalties for trespassing in Virginia:

• Virginia Code § 18.2-119: Trespassing on someone else's property without permission or remaining on the property after being told to leave is considered a Class 1 misdemeanor. This applies to both oral and written notices, as well as notices posted on the property. The penalty for this includes up to 12 months in jail and a fine of up to $2500.
• Aggravating Factors: If the trespasser intentionally chose the property based on the race, religion, colour, ethnicity, gender identity, sexual orientation, or other protected characteristics of the owner or occupant, the offence is upgraded to a Class 6 felony. This carries a penalty of up to 5 years in prison, with a minimum of 6 months, including a mandatory active sentence of at least 30 days.
• Encouraging Trespass: According to Va. Code §18.2-120, encouraging or soliciting someone to trespass is also a crime. This is considered a Class 1 misdemeanour, even if the trespass itself does not occur, as long as the encouragement is proven.
• Conspiring to Trespass: Planning with others to trespass on someone's property is a Class 3 misdemeanour under Va. Code §18.2-23.
• Intent to Damage Property: Entering someone's property with the intent to damage it or interfere with the owner's or occupant's use of the property is a Class 1 misdemeanour under Va. Code §18.2-121. If the person causes damage, they can be charged with both trespass and destruction of property. If the property was targeted based on the owner's or occupant's protected characteristics (race, religion, colour, etc.), it becomes a Class 6 felony with potential penalties of up to 5 years in prison and a minimum of 6 months.
• Disorderly Trespass: Entering someone's property in a way that breaches the peace or threatens to do so is considered a Class 1 misdemeanour.
• Trespassing on School Property: Trespassing on school property or a school bus at night is a Class 3 misdemeanour under Va. Code §18.2-128(A). This carries a fine of up to $500. Unlawfully remaining on school property after being told to leave or violating posted notices is a Class 1 misdemeanour under Va. Code §18.2-128(B). If the intent was to abduct a child, it becomes a Class 6 felony with potential penalties of up to 5 years in prison.
• Trespassing in Cemeteries: Entering a cemetery at night without permission, except for visiting a family member's grave, is a Class 4 misdemeanour under Va. Code §18.2-125. This carries a fine of up to $250. Willfully or maliciously blocking the entrance or exit of a cemetery is a Class 1 misdemeanour under Va. Code §18.2-127(A)(3), with potential penalties of up to 12 months in jail and a fine of up to $2500.
• Trespassing on Church Property: Trespassing on church property at night without permission, except for attending a meeting or service, is a Class 3 misdemeanour under Va. Code §18.2-128(A). This carries a fine of up to $500. Remaining on church property after being told to leave or violating posted signs is a Class 1 misdemeanour under Va. Code §18.2-128(B), with potential penalties of up to 12 months in jail and a fine of up to $2500.
• Hunting and Fishing Trespasses: Hunters or fishermen who enter another person's land or water to hunt, fish, or trap without consent are guilty of a Class 3 misdemeanour under Va. Code §18.2-132. Entering land to hunt or fish in violation of "No Trespassing" signs is a Class 1 misdemeanour under Va. Code §18.2-134, with potential penalties of up to 12 months in jail and a fine of up to $2500. Failing to identify oneself to the landowner after trespassing to hunt or fish is a Class 4 misdemeanour under Va. Code §18.2-133. Tampering with signs prohibiting hunting or fishing without consent is a Class 3 misdemeanour under Va. Code §18.2-135, which can result in up to 6 months in jail, a fine of up to $1000, and revocation of hunting or fishing privileges for up to 5 years.
• Transportation Trespasses: Trespassing on trains, railroads, or public transportation without permission is generally considered a Class 4 misdemeanour. Using fraudulent or counterfeit tickets on trains is a Class 2 misdemeanour, with fines ranging from $500 to $750 for first and second offences, respectively.
• Other Trespass Laws: There are various other trespass laws in Virginia, such as those related to animals, shooting preserves, peeping or spying into dwellings, and unauthorised use of public property. These offences carry penalties ranging from fines to jail time, depending on the specific circumstances and location.

Defenses against trespassing charges

Trespassing in Virginia means entering someone else's property without permission or remaining on the property after being told to leave. Virginia trespassing laws do not apply to areas used for general public access or publicly owned buildings, unless the person did not enter or remain on the property for any purpose associated with its function.

• Lack of Signs or Enclosure: Virginia Code §18.2-119 requires signs or enclosures for trespassing charges. Your defense may argue that there were no such signs on the property, potentially leading to a dismissal of the charges.
• No Disruption of Peace: Disorderly trespass, as provided for in §18.2-11, hinges on the intent to disrupt the peace. Defending against this charge may involve demonstrating that your activities on the property did not disrupt the peace.
• Owner's Consent: Charges may be dismissed if you can prove that the owner gave consent for you to be on the property. However, extended stays without the permission of the owner can lead to a conviction.
• Legal Right: Demonstrating a legal right to be on the property is a strong defense. Certain activities, like labor organizing or participating in legal unions, are protected by Virginia law. The First Amendment offers protection for free expression activities.

If you are facing trespassing charges in Virginia, it is important to consult with an experienced criminal defense attorney who can review the specific facts of your case and advise you on the best course of action.

Court handling trespassing cases

In Virginia, trespassing is considered a criminal offense. Trespassing charges can lead to legal proceedings at various levels of the judicial system, depending on the severity of the offense.

General District Courts

Misdemeanor trespassing offenses are typically handled by the General District Court. This court has jurisdiction over misdemeanor criminal offenses, including trespassing, as well as other less serious property crimes.

Circuit Courts

When trespassing charges escalate to felonies, they are taken up by the Circuit Courts. If convicted in a Circuit Court, the accused may face more severe penalties, including the possibility of imprisonment in a state correctional facility rather than a local or regional jail.

Penalties for Trespassing Offenses in Virginia

Virginia trespassing laws categorize offenses based on severity, ranging from Class 1 to Class 4 misdemeanors for less impactful violations and potentially Class 6 felonies for more severe cases. Here are some examples of trespassing offenses and their associated penalties:

• Trespassing Despite Warnings: Intruding on property despite warnings is a Class 1 misdemeanor, punishable by up to a $2,500 fine and 12 months in jail. If the trespass was committed with discriminatory intent, it may become a Class 6 felony, leading to a 5-year prison term.
• Trespassing on Posted Property: Trespassing on property marked with no-trespassing signs is a Class 1 misdemeanor.
• Trespassing Involving Cemeteries: Willfully blocking a cemetery's entrance is a Class 1 misdemeanor, with penalties including a fine of up to $2,500 and a 12-month jail sentence. Nighttime trespassing in a cemetery is a Class 4 misdemeanor.
• Trespassing on School Property: Trespassing on school property after seeing a notice is a Class 1 misdemeanor. If the trespasser intended to abduct a school child, it may lead to a Class 6 felony. Nighttime trespassing on school buses or property is a Class 3 misdemeanor.
• Trespassing on Church Property: Intentionally trespassing on church property is a Class 1 misdemeanor. If the trespassing involves vandalism, theft, or other criminal activities, additional charges and penalties may apply.
• Trespassing Related to Hunting and Fishing: Unauthorized hunting or trapping in a state-owned forest is a Class 3 misdemeanor, punishable by a $500 fine. Trespassing with the intent to fish is also a Class 3 misdemeanor. Trespassing on hunting or fishing grounds without proper signage may result in a 12-month jail term or a $2,500 fine.
• Trespassing on Transportation: Trespassing on a train or other public transport systems is a Class 4 misdemeanor, punishable by a $250 fine. Railroad trespass may also be treated as a Class 4 misdemeanor.

Frequently asked questions