Criminal trespassing is defined in M.G.L. c. 266, § 120. (See also Jury Instruction 8.220.)
In most case, the crime has just two elements.
- First, a person must enter the house, building, boat, or land (âenclosedâ or âimprovedâ) of another without permission, and
- Second, the person who made entry was forbidden to do so either directly or by means of a posted notice.
According to the Massachusetts Appeals Court,
[A trespasser] is in brief someone who lacks any right at all to be on anotherâs property.[1]
Itâs important to note, that the statute does not apply to tenants who have remained at a property after their lease has ended.
According to the last paragraph of the statute:
This section shall not apply to tenants or occupants of residential premises who, having rightfully entered said premises at the commencement of the tenancy or occupancy, remain therein after such tenancy or occupancy has been or is alleged to have been terminated. The owner or landlord of said premises may recover possession thereof only through appropriate civil proceedings.
Moreover, earlier this year the Appeals Court held that a homeownerâs ex-girlfriend could not be charged with trespassing after she refused the leave the homeowner’s house.
(See my post Court Rejects Homeownerâs Motion to Remove Ex-Girlfriend for Trespassing.)
The SJC has issued a number of decisions which, in my opinion, greatly expand the scope of the trespassing statute.
Here are some examples:
(1) A defendant who mistakenly believes that he is on his own property may still be charged and convicted of trespassing.[2]
A belief on the part of the person entering upon land not in his control that the land is his is still an entry without right.
(2) A person allowed access to one area of a property may be guilty of trespassing if he enters another part of the same property.[3]
(3) Where there is no sign or direct warning that forbids trespassing, such a warning maybe implied from certain security features (e.g., gates, fences, locks, etc.)[4]
(4) When âno trespassingâ or similar signs are posted, itâs not necessary for a defendant to actually see themâso long as the signs âwere reasonably distinct and were posted in reasonably suited places.â[5]
Anyone suspected of trespassing can be arrested and detained for up to 24 hours. If convicted of the crime, a defendant can receive a fine up to $100 and/or a jail sentence of not more than 30 days.
[1] Monterosso v. Gaudette, 8 Mass. App. Ct. 93, 99-100 (1979)
[2] Fitzgerald v. Lewis, 164 Mass. 495, 501 (1895)
[3] Commonwealth v. Krasner, 360 Mass. 848, 849 (1971)
[4] Commonwealth v. A Juvenile (No. 1), 6 Mass. App. Ct. 93, 99-100 (1979).
[5] Fitzgerald Id.
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