Q. Am I obligated to post “no trespassing” signs on my private property to keep people out?
Trespass is best understood as the intentional entry onto the land of another without permission or justification. In New York, trespassing on the lands of another may result in criminal liability under the Penal Law, and may also result in civil liability for the amount of any damages caused by the trespass.
Under the Penal Law, trespass may either constitute a non-criminal violation (akin to a traffic ticket) or a criminal misdemeanor or felony offense, depending on the circumstances. At its most basic level, a person is guilty of trespass, a violation, when he or she knowingly “enters or remains unlawfully in or upon premises.”A basic trespass becomes a class B misdemeanor when the building or real property involved in fenced or otherwise enclosed in a manner to exclude intruders, and is elevated to a class A misdemeanor when the building involved in a dwelling. Trespass becomes a class D felony if the trespasser or another participant trespasses in any building while armed with an explosive, firearm, or other deadly weapon.
Good Fences Make Good Neighbors
The utility of posting certain types of real property to facilitate the criminal prosecution of trespassing comes from how the phrase “enter or remain unlawfully” is defined under the Penal Law. Generally, a person is deemed to “enter or remain unlawfully” on property when he or she is not licensed or privileged (i.e., given permission) to do so. However, the Penal Law narrows that definition by providing that “a person who enters or remains upon unimproved and apparently unused land, which is neither fenced no otherwise enclosed in a manner designed to exclude intruders, does so with license and privilege unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless notice is given by posting in a conspicuous manner.”In other words, a person present on unimproved, unfenced land is presumed to be present with the permission of the owner, and therefore not trespassing, unless the owner has communicated to the person that his or her presence is not allowed, either directly or by posting signs to that effect.
Even in the absence of posted signs, a person may still be prosecuted for trespass provided that the property is improved and obviously used, the property has been fenced, or the owner has directly communicated to the person that their presence is not permitted. Absent one of these conditions, however, establishing a trespass on unimproved, unfenced land will generally require proof that the property has been posted “in a conspicuous manner.”
Make Sure You Know the Rules of Posting Signs
The Penal Law does not define what it means to post land “in a conspicuous manner.” While other methods of conspicuous posting might also be sufficient, Courts have generally recognized that posting land in accordance with the method provided under the Environmental Conservation Law (ECL). Under ECL requirements, signs must be at least eleven inches by eleven inches in size, and at least one sign must be placed on each side of the property and on the sides of each corner, to the extent a corner can be readily identified. The signs may be no more than 660 feet apart from each other, and must be placed close to or along the boundaries of the land in a position which is readily observable. The signs must bear the name and address of the owner or other person lawfully authorized to post the signs, and must either contain the word “
POSTED” or indicate that entry for specified purposes is not allowed without the consent of the owner.
The ECL posting requirements are one way, but not the only way, to show that unimproved and unfenced property has been posted “in a conspicuous manner” as required under the Penal Law to support a prosecution for trespass. Even if the particular signs in question do not meet ECL requirements (i.e., smaller than required size, spaced more than 660 feet apart) a Court may nevertheless find that property was posted “in a conspicuous manner” as long as the proof establishes that the property was posted with a sufficient number of signs, spaced in such a fashion that would give notice to all persons entering the property from any side in any location that trespassing is prohibited. For those property owners who want to control and limit access to their land by third parties, posting signs is likely a more economical and efficient alternative to building fences or regularly patrolling the boundaries of the property.
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