Trespassing

Quick overview

You can normally enter someone else’s land, for example, in woodland or open countryside, unless you are restricted by a fence, a no trespassing sign or a special legal regime. Conversely, entering a fenced garden, yard or marked private land may be unauthorised and in extreme cases criminal.

In particular:

• whether the land is fenced or marked,
• the nature of the land,
• whether you are interfering with the rights of the owner
• and whether there is any damage or threat to privacy.

Are you dealing with land in your neighborhood and don’t know if you can legally walk across it? Or are you resolving a dispute with a neighbor? Contact us about your situation and we can help and advise you.

You may be trespassing on unmarked land and not know it, you may be going there deliberately but perhaps to hand over your neighbour’s mail, or you may be going secretly, at night, crossing a barbed wire fence in the process.

And there is also a crucial difference when you find yourself in someone else’s unfenced meadow and when you are in someone else’s house or adjacent fenced garden. All these aspects will play a role in the subsequent assessment of the illegality of the situation.

If we want to look to the law for answers to questions about possible trespass, theCriminal Code will provide the basic guidance .

It is quite uncompromising. It characterises trespass as a criminal offence where the perpetrator unlawfully enters or enters the home of another or remains there unlawfully. This carries a penalty of up to two years’ imprisonment, or up to three years’ imprisonment if violence or threats are used, or up to five years’ imprisonment if weapons are used or there are more than one offender.

In our practice, we have dealt, for example, with a dispute between neighbours where the owner of a family house had long used a strip of neighbouring land several metres wide as a driveway to his garage. The original owner tolerated the passage, but after the sale of the land, the new owner began to prohibit the passage and the driveway and placed barriers on the property line. The dispute eventually ended in negotiations to establish a road easement and threatened court proceedings.

Similar situations are common, especially in rural areas or in older developments, where for decades it was “by agreement” without legal rights to the road.

Which land can we enter?

Trespass is of course an extreme on one side of the spectrum. But we are in a different situation. We want to walk from one village to another. The path goes through meadows, fields and woods, and we don’t want to violate any regulations or the rights of anyone else. At the same time, we are not aware of the property rights of each piece of land. Do we need to go through the land registry and study the ownership rights to all parts of the planned path before each walk ? This is undoubtedly not the case. But a little bit of caution is needed.

In general, we are free to enter land owned by the state, a municipality or other legal entity. What is important is the nature of the land. It is primarily land such as woodland or meadow that is freely accessible, not state land used for military purposes.

And where are we not allowed to enter?

Built-up or construction land, yards, gardens, vineyards, hop gardens and land intended for farming and animal husbandry are excluded from free passage . At the same time, the Wildlife and Countryside Act says that you must not cause damage to another person’s property or health by passing through, and you must not interfere with privacy or neighbouring rights.

Although many fields and meadows are in the hands of private owners (individuals), and therefore the right of free passage generally does not apply on these lands. At the same time, however, many people are not bothered by the normal passage of tourists and do not regulate them in any way or draw attention to private property. In practice, therefore, if we walk through open countryside, see no signs, fences or enclosures anywhere, and have no knowledge of the landowner, we can move about quite freely.

On the other hand, we will not enter fenced gardens, factory premises and certainly not anywhere where there is any kind of barrier or information sign like “Private land, please do not enter”. Such an entry or use of someone else’s land would be unauthorized.

In practice, we often encounter mainly neighbour disputes where one party has been using someone else’s land as a shortcut or driveway for a long time and the other owner only starts to resist after many years. The most common mistake is the belief that “if you go there for a long time, it automatically doesn’t matter”. However, this does not have to be the case, and situations like this often end up in litigation over the road easement.

Moreover, the courts consider each case individually. They will assess a single passage through a meadow differently from repeated entries into a fenced garden or movement in the immediate vicinity of a house.

What exceptions apply in the forest?

In the previous lines we said that free passage is guaranteed under certain conditions on the land of the state, municipalities and legal entities. Land owned by individuals is exempt from the right of free passage through the countryside. However, such a restriction does not apply in the case of a forest. According to the Forestry Act, everyone has ‘the right to enter the forest at their own risk, to collect forest fruits and dry bark lying on the ground for their own use‘, regardless of who owns the forest. If a natural person owns a forest, he or she may fence part of it, for example, when establishing a forest nursery, game preserve, etc. Otherwise, the forest owner must tolerate visitors.

The opportunity to create a game preserve and then close it to the public must not be abused. This was also decided by the Constitutional Court in the case of the Jelenice game preserve in the Ostrava region. In its ruling, the Court stated that the closure of a game preserve to the public may be made only at the request of the user of the hunting ground in justified and at the same time time time-limited cases. Under the Hunting Act, restrictions on access can be ordered, for example, during the nesting, laying and rearing of young or hunting periods.

Other exceptions for trespassing

Other exceptions to trespassing can be traced across various laws.

The first one is given by the Civil Code in the context of the regulation of neighbouring rights. It states that

• The owner shall allow the neighbour to enter his land at the time, to the extent and in the manner necessary for the maintenance or management of the neighbouring land, if this purpose cannot be achieved otherwise; however, the neighbour shall compensate the landowner for the damage caused thereby.
• Similarly, access must be granted, if necessary, to persons in charge of the networks and pipes that run through the land (energy, communications, water supply, etc.).
• The police may, in the exercise of their powers, not only enter the property under certain conditions, but also open a secure and locked apartment or house. This is in cases where they are safeguarding the health or lives of certain persons or where security is at risk. Firefighters have similar powers.
• Some cases of trespass must be dealt with by the courts. These are so-called easements and establishing access to someone else’s land, where a landowner can claim a right of way or path to a public road across another person’s land if other means of access are impossible. The owner must be compensated. Establishment of the right can be done without a court, by agreement of both owners of the land concerned.
• Another fairly obvious exception is if the owner himself allows us access to his land, invites us onto it, or at least does not fence it off in any way and does not draw any attention to the existence of private land.

Are you resolving a dispute over a driveway or is the neighbour refusing to allow passage across his land? An attorney can help you with the easement agreement and with the court resolution of the entire situation.

How to protect your assets?

But what if you are on the other side of the “barricade” and it is your property that you want to secure in some way against unwanted movement of strangers. What are your options?

Generally, any form of fencing is available. This can generally be undertaken under the Building Regulations if the erection of the fencing does not require ground disturbance, the land is not adjacent to a public road and is outside a conservation area and built-up area. At the same time, the height of the fence must not exceed two metres.

In specific cases, it depends, of course, on the type of land, its size and its location in the landscape. While you can use wire fencing for a piece of meadow for grazing your cattle, for a house with a garden, for example, you might choose a wooden or brick fence.

Today also offers a range of electronics, from CCTV systems to various detectors and sensors that can alert you to unwelcome visitors.

If you are dealing with repeated trespassing on your property, it is advisable to address the situation early. Proper legal action is often more effective than conflicts with neighbours or risky self-help solutions. We are happy to help you with this.

However, the protection of your own property should always be reasonable. So you can install alarms, build barriers and buy strong locks, but if you thought of connecting a crossbow to a motion detector that would “shoot down” any unwelcome visitors, then the court would no longer be on your side.

Summary

It is possible to enter someone else’s land legally in some cases, particularly if it is woodland or open countryside without restriction. Conversely, entering fenced gardens, yards or marked private land may constitute trespass and in extreme situations a criminal offence. There are exceptions, for example, for neighbouring rights, utility companies, the police, or in cases of road easements. If you are dealing with a dispute over access across land or protection of your property, it pays to consult with an attorney before the situation escalates into a long-term conflict.