Overview of Trespassing Laws in WV
In West Virginia, a trespasser is someone who unlawfully enters the land or an area posted with signs as private and/or gated in the absence of the property owner’s consent. West Virginia boundaries are determined by reference to markers, monuments, water courses, and/or certain surveys which have been filed with the Surveys Office prior to June 1, 1992. A written description of a boundary which includes any of the aforementioned would also delineate the owner’s property. A trespass may be civil (i.e., incurs monetary damages) or criminal (i.e., a misdemeanor punishable by fines or custody) . When damages would be imposed upon a trespasser in a civil case, the calculation is based on either the actual damage caused if there was actual damage, or the loss of use damages if there was no actual damage. The maximum amount imposed against a trespasser, however, is $500.00 per acre or part thereof, if there was no actual damage, with a minimum of $100.00. In cases where an amount has been calculated, it would not be out of order for the court to award attorney’s fees to the aggrieved party. Moreover, the trespasser is forbidden from abstracting minerals from a trespass beyond the above-mentioned damages. If the trespasser had a good faith belief that he had the permission of the property’s owner to be on the property, the trepassing statute does not apply to him (WV Code § 55-8-10(b)).
Types of Trespassing Offenses
West Virginia law defines criminal trespassing in criminal offenses against property, Article 1, Chapter 61-3. This revision occurred when West Virginia abolished common law crimes (i.e., crimes based on judge-made law) in 1990. Id. § 1-5. Now, trespassers can be prosecuted for trespassing under three categories of trespassing offenses in West Virginia: criminal trespass, trespass with intent to commit an offense, and trespass means prohibited. Each criminal offense has different punishments and elements.
Criminal Trespass. Under W.Va. Code § 61-3-24(a), criminal trespass occurs by a person purposely and without authorization entering upon an unauthorized, nonfenced residential or commercial property. Criminal trespassing is a misdemeanor, punishable by a fine of not more than $100.00 or imprisonment in jail for not more than 90 days, or both.
Trespass with Intent to Commit an Offense. Under W.Va. Code § 61-3-24(b), criminal trespass with the intent to commit an offense is a person purposely entering upon an unauthorized, nonfenced residential or commercial property "knowing that such entry is forbidden or without having had effective consent." The "intent to commit an offense" distinguishes it from simple criminal trespass.
When charged under this section, the prosecution must prove two elements: (1) the defendant purposely entered upon the unauthorized property; and (2) the defendant intended to commit an offense at the time he or she entered the property. The statute does not limit the offense to a specific intent to commit an offense. Instead, a general intent to commit any offense while on the property at the time of entry can be sufficiently charged to support an indictment and prosecution. State v. Godfrey, 225 W.Va. 746, 749 (1990).
This crime is a misdemeanor or, if the underlying offense is a felony, a felony of the same degree as the underlying offense. W.Va. Code § 61-3-24(b).
Trespass Means Prohibited. Under W.Va. Code § 61-3-24(c), criminal trespass means prohibited occurs when a person "knowingly enters upon an unauthorized area that is fenced, or otherwise enclosed [and] effectively closes off access to persons making a casual observation," in order to engage in a specified prohibited act or offense. This section delineates the prohibited activity; however, it does not define the degree of the offense. Therefore, it is likely a misdemeanor or felony of the same degree as the underlying offense. See W.Va. Code § 61-3-24(b).
By definition, this offense is more serious than criminal trespassing under subsection (a) because it is committed on a fenced in or otherwise enclosed area, which is often private property and means the offender had notice the area had been legally closed off to the public.
Penalties for Trespassing in West Virginia
For the average person, the thought of being charged with a crime may seem unthinkable, to say nothing about being convicted of a crime. For short, petty crimes like trespassing, however, West Virginia has outlined fines and even jail time for certain levels of misdemeanor charges.
For first-degree trespass—a trespass that occurs on or under "premises that are not open to the public and a reasonable person would not believe that the premises are open to the public"—the maximum penalty is a $500 fine and 90 days in jail.
Second-degree trespass, which occurs when a person "knowingly enters upon" private property when prohibited from doing so or "remains upon" it after being legally told to leave, incurs a penalty of $100 and 6 months in jail. However, in addition to this fine, the supreme court of appeals ruled in its 2000 decision in State v. White that a judge may require a survey of the property as part of the penalties assessed, arguing that a nuisance to others is okay only to the extent that it doesn’t affect the quality of life of others.
Trespass also includes entering land "under cultivation," any house, or "any barn or other building . . . containing agricultural products or farm machinery." A violation of this type of trespass could bring a $100 fine and 30 days in jail in West Virginia.
Criminal trespass is a more serious crime, akin to breaking and entering, that in West Virginia incurs a $1,000 fine and 1 year in jail. Criminal trespassing increases to a felony charge subject to at least 1 year in prison or up to 5 years for entering a dwelling or structure with "nontrivial penal significance."
Exceptions and Defenses to Trespassing Charges
However, exemptions or affirmative defenses to liability for trespass are found within the statutes. West Virginia Code Section 61-3-504a is entitled "Exceptions to the offense of trespass." It applies to real property that is intended for building or use in connection with a "commercial or residential building." This law allows you to enter land or buildings for the purpose of "acting in the protection of persons and property" as long as you abide by certain precautions. It does not apply to buildings or a "real property intended for protecting…" or "investment in preserving it." Real property that is "unimproved," or where building has ceased for three years, is not legislated against, i.e., you have a defense against trespassing charges. If you have acted without malice, then the law protects you, because you feel that it is necessary to enter the property and/or visually examine the property to protect any person or property. However, you may have to pay for any damage that was caused as a result of your actions. See also retainers, personal items in safes and cash. In addition, when it comes to civil cases within West Virginia, an affirmative defense to intentional torts that includes "intentional trespass" is recognized in West Virginia law. It is entitled "Cdb v. Citizens Dep’t of Transp.", 223 W.Va. 704, 671 S.E.2d 849 (2008) and based on a ruling from 1994 in "Duncan v. Vorhes", 194 W. Va. 406, 460 S.E.2d 432 (1995), is an important ruling. An affirmative defense is a set of facts that defeat the original claim of a plaintiff that defines the elements of a cause of action. In other words , an affirmative defense is that the defendant had permission to enter the property, and therefore the trespass is not actionable. Another case to remember is "Harris v. West Side Bank, FSB", No. 34552 (W. Va., July 27, 2007). It too affirmed that the consent of an entry is a defense to civil liability for trespass. Another case to be aware of is "Mountain State Dock, Inc. v. Fearnot, 196 W. Va. 377, 472 S.E.2d 603 (W.Va. 1996)" which stated that the "unlawful" entry onto land owned by another which would constitute a trespass gives a person who is injured the right to sue as long as the injury was caused by the actual unlawful entry and subsequent act(s), not by some other or different event. However, it did not define "unlawful." This definition was given in the next case called "Keenan v. Dealer’s Truck Equipment Co., 207 W. Va. 653, 535 S.E.2d 724 (W.Va. 2000)" which stated that "An entry upon the land of another is ‘unlawful’ when this entry is characterized as being ‘uninvited, unauthorized and unpermitted’ so that it would otherwise constitute a trespass. A differentiation must be made between an individual who ‘enters’ upon real estate and an individual who acquires possession of real estate by actual adverse occupation of that real estate." The distinction is a fine one, and requires a lawyer to defend or sue. However, invitation or permission need not be in writing but may be implied by circumstances. For more information on what entails an invitation, please see the article about "Who is an invitee and Who is a Licensee?" or see the article about "Duty of Care Based on the Status of Persons on your property."
Impact of Trespassing on Property Rights
West Virginia property rights are a bit more complex than many think. For instance, for most people in West Virginia, they think a landowner has full rights to exclude anyone from entering on his/her land. And although in general that may be true, there are exceptions to that general rule. In addition, for certain property owners the right of exclusion is not absolute. So, all property owners, even those who own real property that is to the exclusion of their private home, should have at least a basic understanding of trespass law in the Mountain State.
As previously mentioned, in West Virginia, a landowner has the right to exclude persons from entering onto his or her land. However, a landowner cannot exclude guests who have entered onto a property in a way which is common and ordinary. This exception to the general rule applies to invitees (such as friends, family and guests) and licensees (such as utility workers). A guest or visitor to someone’s land is considered a "licensee" if he goes upon the premises of another for his own purposes and not for the mutual benefit of himself and the land owner and he is permitted to remain on such premises as long as he does not unwarrantedly interfere with the owner’s lawful use thereof. Conversely, a guest is considered an "invitee" if he goes into the land owner’s house for purposes for which the landowner has an economic interest in the person who is entering, or if he enters the land of another for a material and substantial purpose which is lawful and with the consent, express or implied, of the owner of the property. See Anderson v. Williams, 122 W.Va. 218, 5 S.E.2d 817 (W. Va. 1939).
If a landowner wants to exclude a licensee or invitee from his or her property, it is likely only a result of two factors: One, the landowner doesn’t like the person for making excessive use of the landowner’s land and two, prohibiting the person from entering onto the property is likely illegal, morally wrong or otherwise socially unacceptable.
With regard to offenses constituting trespass, there are two types: statutory trespass and common law trespass. Most cases that are called "trespassing" or "criminal trespassing" fall under the West Virginia trespassing statutes found at W. Va. Code 61-3-1, et seq. Among other things, there is a presumption of criminal intent if a person enters the property of another after having been notified by the owner or occupant not to enter it or after he sees a written or printed notice not to enter. Under W. Va. Code 61-3-13, this generally includes farm and garden land used for cultivation, pasture, meadow or for dairy or fur-bearing animals. This crime is a misdemeanor unless the landowner or occupant has posted a "No Trespassing" sign at all customary approaches to the property.
Common law trespass, on the other hand, does not require any intent. Rather, it requires the entry into the land of another which is real and tangible, and the landowner does not rely upon the statutes for protection of possession. So long as the entry is not warranted there will be liability under common law trespass. This crime can be a civil or criminal offense. The most common trespassing scenario typically involves a person that requests permission to enter a property for purposes neither the owner or occupant permits. There is no liability under common law trespass for entering the property of another for an innocent purpose under a claim of right.
Recent Cases and Legal Developments
The last few years have brought about an increase in outdoor adventure recreational trail development across the state of West Virginia. These trails, due to both natural terrain and natural barriers (e.g., rivers, mountains, etc.), often require private property easements by private landowners. Certainly, the development and marketing of these outdoor spaces have highlighted private property trespass liability concerns; but the legislature has not addressed any changes to W.Va. Code §61-3-13(a), which relates to criminal trespass.
In a case of first impression, the West Virginia Supreme Court of Appeals in 2015 held The West Virginia Recreational Property Act (the "Recreational Use Statute") immunizes "a landowner of land who directly or indirectly invites or permits without charge any person to use the land for recreational purposes" under the Criminal Trespass Statute. The Court relied heavily on the broad construction of "recreational purpose" as previously laid out by the legislature in W.Va. Code § 20-3A-2 through 20-3-A-9, a key definitional section of the Recreational Use Statute. And as has been the subject of controversy since the onset of the standards for a premier outdoor destination , the Court has left the question unanswered as to whether this statute applies only to private property owners and invitees (e.g., ticket holders) on commercial property. Nevertheless, the legislature appears to be moving toward more restrictive laws with respect to private property liability. W.Va. Code § 20-3B-1 et seq. was enacted in 2018, creating a shield from liability for recreational lands held by West Virginia state agencies.
Of note, we are not actually seeing an influx of trespassing cases on private lands – a few century old shotgun cases aside. The reason is simple: Outdoorsmen and sportsmen generally avoid "bad actor" boundaries and define athletic fields, fishing spots, hiking trails and horseback riding trails as friendly or friendly enough spaces or where they can share the space with other users. This "hunting community" is not invasive or harmful to other property owners of an adjacent parcel and is really a non-factor in the general trespassing debate. Thus, while there is no specific change in the law, at least, in recent years, there is no trend away from this general consensus.