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Know Trespassing

Most of us have seen signs that say "No Trespassing" or have wondered if we would be allowed to walk, snowmobile or hunt on someone's property. This pamphlet will help you understand the trespassing laws in New Brunswick. It does not contain a complete statement of the law in the area of trespass and laws change from time to time. Anyone needing specific advice on his/her own legal position should contact a lawyer.

Background

Trespassing is entering someone's property without permission or lawful excuse. Many people think that the 1983 Trespass Act, which has only limited application, is the only law in New Brunswick that deals with trespass. This is not the case. All property (lands and buildings) is protected by the common law. If someone enters your property without permission or lawful excuse, a trespass is committed. You may remove the trespasser and consider legal action.

The Trespass Act, the New Brunswick Fish and Wildlife Act, and the Criminal Code of Canada set out offences relating to unauthorized use of another person's property.

What is trespass at common law?

If you enter someone's property by any means (for example, on foot, ski, or by car) without permission or lawful excuse, you commit a trespass at common law. It is a trespass regardless of your intention or whether damage is done to the property.
The following are also trespasses at common law:

  • To be on someone's property when permission to be there was granted and later revoked by the owner or occupier of the property.
     
  • To get permission to enter someone's property for one purpose and do something else.
     
  • To toss something, such as garbage, onto another person's property, or allow your cattle to enter that property, even if you do not enter personally.

Can I take legal action against a trespasser at common law?

Yes. If your property was damaged by someone who committed a trespass at common law, you can take civil action. A civil action is a legal proceeding in court that resolves disputes between people. This means that as the owner or occupier of the property you can sue the trespasser in court and ask for money compensation. If the court finds that the trespasser caused damage to the property, then the trespasser may be ordered to pay for the damage.

You can sue the trespasser even though the property was not damaged. The amount of compensation in this case would be the price that a reasonable person would pay for the right to pass over the land.

You can also ask for an injunction to stop the trespass from happening again.

Are there any defences to a trespass at common law?

Yes. If the trespasser has a lawful excuse for being on the property, then he or she may not be guilty of trespass. For example, the person may have reasonably believed that he or she owned owned the land. Emergencies may also provide a lawful excuse for a trespass. For example, a passerby who enters your property to put out a fire or rescue somebody, would not commit a trespass.

People who have legal authority given by legislation to enter property, such as game wardens and surveyors who are on the job, are not liable for trespass.

When is trespassing an offence?

Trespassing is considered an offence where it is identified as such in provincial or federal legislation and charges may be brought against the trespasser. The Trespass Act protects certain types of property by making trespass to such property an offence.

The Fish and Wildlife Act deals with hunting, shooting, and trapping on people's property and creates offences. The Criminal Code says that the police can charge a person who loiters or prowls near a house at night.

What activities does the Trespass Act forbid?

Trespass to shopping malls and schools and other commercial and educational premises, and shelters from domestic violence:
You will be a trespasser if you refuse to leave a shopping mall or a school or other commercial or educational premises, or a shelter from domestic violence or any land used in connection with such places (such as parking lots) after notice not to trespass has been given to you. You will also be a trespasser if you are told not to trespass and you re-enter the premises. You will not be a trespasser to these places if you are in a peaceful public demonstration, lockout, or strike.

Trespass to areas that are sensitive to environmental damage:
You will be a trespasser if you enter sensitive environmental areas by means of a motor vehicle regardless of whether or not notification was given. These areas include wildlife and ecological reserves, watercourses, lake shore areas (25 metres above and 25 metres below the high water mark), ocean shore areas (from the low tide mark to 300 metres above the high tide mark), and saltwater and freshwater marshes. You can enter these areas, except wildlife and ecological reserves, with a motor vehicle if the ground is frozen and covered by snow.You are allowed to drive across a watercourse if you do it at the usual crossing point.

Trespass to agricultural land:
You will be a trespasser if you enter land that is identifiable as agricultural land by means of a motor vehicle. You will also be a trespasser if, by means of a motor vehicle, you enter agricultural land in relation to which the owner or occupier has given notice not to trespass. Agricultural land includes lands cultivated or managed for the production of food for humans or livestock, cultivated or managed orchards, pastures, Christmas tree plantations, and seedling and sapling plantations.

Forest land:
You will be a trespasser if you enter, by means of a motor vehicle, any forest land in relation to which the owner or occupier has provided notice not to trespass. Forest land means any land lying outside the boundaries of a city or town and not cultivated for agricultural purposes, on which trees, shrubs, plants or grass are growing. It also includes private roads on such lands. The owner or occupier of forest land who does not want people to bring motor vehicles onto the land must give notice not to trespass there.

What does the Trespass Act mean by "motor vehicle"?

The Trespass Act says that "motor vehicle" includes any motorized vehicles such as automobiles, motorcycles, snowmobiles, and all-terrain vehicles, as well as any trailer or accessory attached to the motor vehicle.

How do I give notice not to trespass on my agricultural land?

If you are not sure your land is identifiable as agricultural land, the Trespass Act sets out three ways for you to give notice to others not to trespass on your land by motor vehicles. The means of notification are:

  • posted signs which must say "No Trespassing " or bear words of similar effect. You can also post agricultural land with blue disks or with painted blue bands which encircle a tree or post. A sign must be posted so that it is clearly visible in daylight under normal conditions from each ordinary point of access to the land;
     
  • by word of mouth; or
     
  • in writing.

How do I give notice not to trespass on my forest land?

If you do not want people to bring motor vehicles onto your forest land you can give notice not to trespass by:

  • posted signs which must say " No Trespassing " or bear similar words along with the words " by order of " followed by the name of the owner or occupier, plainly visible and legible;
     
  • word of mouth; or
     
  • in writing.

Can I enter Crown Land on a motor vehicle without permission?

The Trespass Act applies also to Crown Land used for agricultural purposes. The Act applies as well to wildlife and ecological reserves, watercourses, lake and ocean shore areas, and saltwater and freshwater marshes on Crown Land.

What are the fines and punishments for trespass offences?

A person who violates the Trespass Act commits an offence and is liable to a fine which may vary with the type of offence. If a vehicle is used in the trespass, the court may order that the vehicle be seized and forfeited to the Crown.

If you trespass and cause damage to land sensitive to environmental damage, agricultural land, or forest land, then the court may order you to pay for the damage. The maximum the court can order you to pay is $3000. If the damage is greater than $3000, then the owner or occupier may take civil action against the trespasser and ask the court for more compensation.

Are there any defences to a trespass charge?

Yes. Persons charged under the Trespass Act may argue that they reasonably believed they had a legal excuse for being there. For example, they may have believed they owned the land. In the case of agricultural land, they may also have a defence if they can prove that the posted signs, blue disks, or painted blue bands were not clearly visible.

Can I stop people from hunting, shooting, or trapping on my property?

Yes. The Fish and Wildlife Act of New Brunswick allows an owner or occupier of property to control shooting, hunting, or trapping, or any combination of these activities on his/her property. You can stop people from doing any of these activities by posting signs. The signs must indicate clearly the activity or activities that are prohibited by the words "No Shooting", "No Hunting", "No Trapping", or any combination of these. Such a prohibition applies to everyone including the owner or occupier of the property.

If you want to prohibit all shooting, hunting and trapping, then you can post red disks or put painted red bands around trees or posts. These red disks and bands mean that no one, not even the owner or occupier, can hunt, shoot or trap on the property.

If you want to allow people to hunt, shoot, or trap, or any combination of these activities, on your property but only if they ask you first, then you may post yellow disks or put yellow painted bands around trees. These yellow disks and bands mean that the permission of the owner or occupier is required. You must register the posting of these yellow disks with the Minister of Natural Resources and Energy each year.

Signs must be posted at each corner of the land, at every entry point, and every 100 metres along the edge of the land.

If land is not posted under the provisions of the Fish and Wildlife Act, the law assumes that the owner has consented to the entry of people onto the land to hunt and trap. Even if the land is posted to prohibit hunting, the law allows a person to enter to go after and take wounded wildlife that has gone onto the land. Such a person would, however, be liable for any damage he or she might cause to the land. In any case, entry onto the land on a motor vehicle, may be restricted by the provisions of the Trespass Act.

What if somebody tears down a sign?

The Trespass Act and Fish and Wildlife Act say that you may be charged if you tear down, remove, damage, deface or cover up any sign.

What may I do if a trespasser is on my property?

If a trespasser is on property protected by legislation, you may call the police immediately. In any case, at common law, you can ask the trespasser to leave your property. You must then give the trespasser a reasonable amount of time to leave peacefully. If the trespasser does not leave, you may force the trespasser off your property. It is, however, against the law to use more force than is reasonably necessary.

Am I responsible for trespassers who enter my property?

Yes. The common law says that an owner or occupier of property who knows about a danger on his or her property, may owe a duty of care to trespassers if he or she knows that trespassers may come onto the property. There is a duty not to create a danger with the intention of causing harm to trespassers. There is also a duty not to act with reckless disregard toward trespassers. If you know about dangers on the property (such as concealed holes or fences) and you know that trespassers may come onto the property, then you should remove the dangers or warn the trespassers about them.

Under the Trespass Act, the only duty of care that you owe to trespassers in a motor vehicle is the duty not to act deliberately or recklessly so as to cause them harm. You may be liable for such harm.

Public Legal Education and Information Service of New Brunswick is a non-profit organization. Its goal is to provide New Brunswickers with information about the law. PLEIS-NB receives funding and in-kind support from the Department of Justice Canada, the New Brunswick Law Foundation, and the Department of Justice of New Brunswick.

We gratefully acknowledge the in-put and assistance of the the Legal Services Branch, Department of Justice of New Brunswick; the University of New Brunswick Law School; and, members of the Law Society of New Brunswick.

Published by:
PLEIS-NB
P.O. Box 6000
Fredericton, N.B. E3B 5H1
CANADA
Tel: (506) 453-5369
Fax: (506) 462-5193
Email: pleisnb@web.ca
March 2000
ISBN 1-55048-459-8

 

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Disclaimer: Please note that our website contains general information about the law. This is not a complete statement of the law on particular topics. We try to update our publications often, but laws change frequently so it is important for you to check to make sure the information is up to date.  The information in our publications is not a substitute for legal advice. To receive legal advice about your specific situation, you need to speak to a lawyer.