Trespassing
DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.
Rights in Private Property
Everyone has the right to set down the conditions on which they are willing to allow others to enter onto their property. A property owner is entitled to prohibit photography on his property, or to restrict it, for example by allowing for non-commercial use only. A person who takes photographs in contravention of the conditions becomes a trespasser and could be sued.
— iStockphoto
Trespassing is the act of being on property without permission from the owner or lessee. Note that this is about where you are, not what you’re doing — trespassing is legally separate from photography. You can be illegally trespassing and still be legally taking photographs.
What actually constitutes illegal trespassing differs by jurisdiction. All a property owner can do is ask you to leave and escort you off the property; they can’t stop you from taking photographs or seize your equipment or hold you.
If you are at a mall, shop, hotel, restaurant, park or other place where the public is normally allowed, you are not immediately trespassing. Permission to enter is assumed. However, that permission can be revoked. At the moment that a security guard (or other agent of the owner or lessee) demands that you leave, then you are trespassing and you should leave. If you do leave, you cannot be prosecuted as you are complying with the change in status. If you do not leave, they have to call a law enforcement person to arrest you. The mall can say that you are banned, in which case future entry will be trespassing.
Property owners and security guards are restricted in what they can do. They can only use reasonable force to remove you. If you are not posing an immediate threat, they cannot use force and their only recourse is to call a law enforement officer. They cannot arrest or hold you (except at U.S. railroads). And they can’t do anything if you are on, or when you get to, public property and rights-of-way. Thus, you can stand on a public street and photograph.
Can You Be Prosecuted?
It depends upon where you are as different places have different statutes.
In California for example, your mere presence on land which is open to the public is not illegal — you must also have “the intention of interfering, obstructing or injuring” people or business activity to be illegally trespassing (CA penal code 602j). If you’re on land not open to the public (other than a dwelling), It’s not illegal unless you refuse or fail to leave “when requested to do so” (CA penal code 602n). You can only be arrested by the police after they’ve received a signed “Trespass Arrest Authorization letter.”
In California, trespassing (first offence) is a misdemeanor (minor crime). In England and Wales, trespassing is not a criminal offence, just a civil wrong.
No Photography Signs
Property owners can differentiate upon usage, for example, if they post a “No Photography” sign, you can legally go on the property but as soon as you start taking photographs you’d be trespassing.
Next page: What is the law on trespassing?
Comments
Reply by Delanae
January 27, 2017
Hi Andrew,
Thank you for the information.
I recently leased studio space for my photography. The owner of the building gave me exclusive photography rights as I am a tenant and I’m doing work for him to promote the building to new tenants.
The building isn’t even open for business yet... so I was taken aback when I came out of my space and see a professional photographer set up doing a portrait session of a beautiful young lady and young man.
I spoke to him nicely, told him I had exclusive photography rights by the owner of the building. We were friendly. He said that he asked another tenant and they told him it would be ok. So? I didn’t kick him out, but wanted to.
I wrote this other tenant a very nice email, as she was not there that evening. It’s been 2 days and I have not heard back from her. I’m meeting with the owner tomorrow and I’d like him to put a sign up and also have something to show to back me up when he’s not around.
What would you suggest I have at the ready? I’m looking online for verbiage but coming up empty.
I just feel it’s so unfair that I’ve been busting my rear for this location, doing lot of extra work, the owner has made sure I follow his rules and this other guy just waltzes in and hasn’t earned the right to be there.
I felt like there was another "rooster in my hen house".
In the end, this other photographer was very nice and I’m glad I got to meet him... but, I want to put a stop to this before it gets out of hand. I don’t want the owner to revoke my privileged because all of a sudden there are photographers not being respectful or not picking up after themselves.
Thank you in advance,
Delanae
Reply by Andrew Hudson, PhotoSecrets
January 30, 2017
You are doing the right thing by talking with the owner. If you are paying for something (studio space and exclusive photography rights), then the owner should deliver that by advising the other tenant. Your arrangement would be contract law, so if you need more help, talk with a contract lawyer.
Reply by Anonymous
August 18, 2016
Hi. Today I was walking in downtown Toronto and I went into a hotel, me and my friend went up a couple floors to look around the hotel, taking pictures of some of the lights and views from the windows, soon we were greeted by two security gaurds who told us that we were trespassing in the hotel, even though it’s a public hotel, and then searched us and banned us from the hotel. In your opinion, would that be trespassing because there were no signs that said it was or that you couldn’t take picture? Thank you.
Reply by Andrew Hudson, PhotoSecrets
September 2, 2016
Yes, that sounds like trespassing. If you are not staying in the hotel, you can visit the public areas but not the room floors. If a security guard asks you to leave, then you are now trespassing and should leave the private property.
Reply by Khalil Gallien
August 13, 2015
Hi Andrew. My friend and I were curious to see our new school that was built as we passed by it a couple days ago. The gate to get into the school was open and no construction workers were present so we assumed we could look. The door to get in to the school was open as well and so we went in to look at its progress out of curiosity. A construction worker found us and asked us to leave and we did so, willingly. A couple days later, the police showed up at my door because the construction worker took down my license plate and asked if I had been there and why. He wanted to know my name to "put it in some records" and I refused because Michigan law states: "(a) Enter the lands or premises of another without lawful authority after having been forbidden to do so by the owner or occupant or the agent of the owner or occupant.
(b) Remain without lawful authority on the land or premises of another after being notified to depart by the owner or occupant or the agent of the owner or occupant.
(c) Enter or remain without lawful authority on fenced or posted farm property of another person without the consent of the owner or his or her lessee or agent. A request to leave the premises is not a necessary element for a violation of this subdivision. This subdivision does not apply to a person who is in the process of attempting, by the most direct route, to contact the owner or his or her lessee or agent to request consent."
I interpret this much like California’s law that says if I had been asked to leave and did so, then I did not trespass. I’m curious as to why he showed up at my door when he could’ve just called. Was I breaking the law? Am I interpreting it wrong? Could you help? Thanks Andrew.
Reply by Andrew Hudson, PhotoSecrets
January 13, 2016
Hi Khalil,
I agree that you did the right thing by leaving when asked to. I do not know why a policeman showed up at your door, but you could ask him. Schools are sensitive places so the police are probably just doing their due diligence. You did not get charged so this does not seem to be a problem.
Reply by Westford
August 11, 2015
From the iStockphoto quote above "A property owner is entitled to prohibit photography on his property, or to restrict it, for example by allowing for non-commercial use only."
I just wanted to point out that a lot of people are confused about restricting a photographer’s use of photographs. Like the iStockquote, many feel that others can put restrictions of the USE of your own photographs as a condition of entry. However, once you have clicked the shutter button and captured your shot, you own that photograph and are free to do whatever you wish with it. You can not be prevented from using your photos commercially in any way that you would legally use any other photos you take.
I will add that a lot of places which have "commercial use" wording on their photo policies and being prohibited or requiring a permit for commercial shooting are usually more concerned with the process of a commercial shoot (read: lots of people, lights, tripods, models, equipment, needing exclusive access to a particular spot, etc.) where things like public safety (subway station for example) and public access and flow are likely to be affected rather than your use of the shots later.
Reply by Anonymous
July 20, 2015
Hi Andrew, I was escorted out of the club that was inside the hotel. I was a guest there and was not allow to return to my room and pack my things and leave. They escorted me out where the police at that point arrested me for trespassing. Am I able to fight this?
Reply by Andrew Hudson, PhotoSecrets
January 13, 2016
This depends. You should consult an attorney.
When on private property, you can be asked to leave. Generally, if you do so immediately, that is not trespassing, but if you refuse to do so and have to be escorted or forced out, then that could be actionable trespassing. This depends upon the law in your state. In your case, it sounds like the management was not happy with your behavior and wants to ensure you do not return.
Generally, if you are a paying guest of the hotel, you can go to parts of the hotel that are open to guests, such as a hotel bar. But if the club had an entrance policy (such as an entrance payment), then being a guest is immaterial.
I am not a lawyer and this is not legal advice; consult a local attorney for advice.
Reply by Anonymous
July 3, 2015
Andrew,
I recently went onto posted land to photograph where one of the NY convicts was shot and killed. I am going to be doing a series about the 3 week ordeal but I’m curious. Can I be prosecuted for trespassing to GET the photos I now have even though I wasn’t caught in the act?
Reply by Andrew Hudson, PhotoSecrets
January 13, 2016
Hi,
I am not a lawyer and this is not legal advice.
This would depend upon the legal definition of trespassing where the land is.
New York state law defines trespassing as:
“A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders” — S 140.10(a)
Since the land was posted, that would suffice for “knowningly”. But was the property “enclosed”? Would a property owner prosecute you if you are no longer on the property and did not cause damage?
Reply by Anonymous
May 27, 2015
Hi, someone I know recently climbed a tower in London, they took their phone with them and took legal photographs of the scenery. Recently they got a message on my phone saying "your phone is being monitored for terrorist activity - essex police"
Now can this person be liable to be guilty of trespassing from the photos that they took? The terrorism bit doesn’t bother them as they know that they are not involved in anything like that.
Reply by Andrew Hudson, PhotoSecrets
May 29, 2015
TOWER IN LONDON
Yes, the person could probably be prosecuted for trespassing. Presumably the tower is not intended to be climbed this way by the public, so the person knew they were not welcome on this private property. The photos prove the location of the photographer. However, the person has not been prosecuted so presumably the problem has passed -- unless they do it again.
Reply by Anonymous
May 9, 2015
Hi Andrew,
Would it be trespassing to swim in a hotel pool if I’m not a guest?
Reply by Andrew Hudson, PhotoSecrets
May 19, 2015
Hi,
Possibly yes!
Trespassing is a local ordinance so would depend on what U.S. state (or wherever) the hotel is in. A hotel is private property so generally you can be asked to leave for any reason and if you do not, you would then likely be trespassing.
See “TRESPASSING IN A HOTEL” below in these comments.
Reply by Howard
May 6, 2015
I was at a vendor booth in a shopping mall where I had purchased a warranty repair contract for a cell phone, I had proof of purchase but vendor refused to honor contract but instead wanted to negoniate a new deal where I would pay half price for the repair. I took the position that either the phone got repaired under the terms of the warranty repair contract or I get the money back that I had paid for the contract. I was told to take the offer or leave which i refused. I then go arrested for criminal trespassing because I stood my ground and would not leave
Reply by Andrew Hudson, PhotoSecrets
May 19, 2015
Hi Howard,
Sorry to hear of your predicament.
There are two separate issues here: contract law, and trespassing. Since you were on private property, the property owner or manager (presumably the manager of the shopping mall) can ask you to leave for any reason, and if you do not leave you would likely be trespassing.
As for the warranty, that is a contract so any breach by the vendor would be an issue of contract law. However, additional warranty repair contracts are often administered by a third party (not the vendor directly) and can be similar to an insurance contract — written in such a guarded way as to give you little recourse.
Reply by Anonymous
April 16, 2015
Hi,
Is it trespassing to walk inside of a hotel and take the elevator to a high floor to get a view if I am not a registered customer of the hotel?
Reply by Andrew Hudson, PhotoSecrets
May 19, 2015
TRESPASSING IN A HOTEL
Hi,
Good question! Answer: Possibly yes if you know you should not be there, and probably yes if you stay after being asked to leave.
Trespassing in the U.S. is a state law. Nevada defines trespassing as:
Willfully going on or remaining on another person’s property after having been warned by the owner or occupant not to trespass.
NRS 207.200
Here is another example:
A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property ... which is fenced or otherwise enclosed in a manner designed to exclude intruders ...
New York State law §140.10
A hotel is private property and if you are in a non-public part of the hotel (such as a high floor) that you know (or should reasonably know) that you are not entitled to be in, then you are likely trespassing. If you are asked to leave, you should do so, otherwise you could be escorted off the property and possibly prosecuted.
Reply by Anonymous
February 27, 2015
Can a security guard take my picture randomly without my consent on public access private property (store, mall, etc.)?
Reply by Andrew Hudson, PhotoSecrets
March 6, 2015
Yes I believe they can. If you are in public, you can be photographed by anyone including a security guard.
Reply by Anonymous
February 19, 2015
What if the property is abandoned with no trespassing signs and all I’m doing is taking photos not defacing the property from Texas, would I be charged with anything if I went inside?
Reply by Andrew Hudson, PhotoSecrets
March 6, 2015
Hi,
Like many things, there is a gap between technically trespassing and being charged for trespassing. Even if a property is abandoned and there are no signs and you are not defacing anything, being on private property without permission is technically trespassing. But if the property owner is not interested in filing a trespassing case then you probably won’t be charged with anything.
Reply by Matt
December 4, 2012
I am 17. If an adult of any sex comes onto my parents property, and keep in mind I do not want that person there, do I have the right to tell them to leave the property? Can I threaten them? Do I have the right to intimidate through threatening them?
Reply by Andrew Hudson, PhotoSecrets
December 4, 2012
PROPERTY
Hi Matt,
Trespassing is a local ordinance, so it would be affected by where you are. Generally, if the property is private, a property owner (or their 17-year-old son) can ask anyone to leave (under some general, non-discriminating rule). Some states allow you to use force under some conditions. You should check with a local lawyer to see what your rights are.
I am not a lawyer and this is not legal advice.
Best wishes,
Andrew
Reply by Erik Gregory
November 13, 2011
I’m having difficulty deciding whether the following represents trespassing and you two who have posted seem to have a good idea--I own a condo and the resident in the unit underneath me (an older man I suspect of suffering from early dementia) has been coming up my stairwell, leaning over my gate at the top of the stairwell and thrusting a camera over the gate to take pictures of my balcony (which has an open view of my living room through the sliding glass door--his reason for doing so was that he insisted I was the cause of a leak he was experiencing but it was revealed to be an HOA responsibility and not mine). I grew so tired of the harassment I installed a security camera and actually caught the guy on video doing this.
My question--can I have this guy arrested for trespassing? I don’t want to have him arrested, but I would like to be able to definitively state I could have him arrested which I hope would end the harassment. Any thoughts? Many thanks!
Reply by Andrew Hudson, PhotoSecrets
November 16, 2011
Hi Erik:
That’s a good question. I don’t know, and I’m not a lawyer. That does not sound like trespassing as he is standing on communal property. But maybe you could halt him on the grounds of harassment or invasion of privacy. Maybe getting the HOA to fix the leak would fix the problem!
Andrew
Reply by Andrew
October 30, 2011
You are wrong on the law in California. PC 837 outlines the definition of private arrest. If a person has committed PC 602 (criminal trespass) by failing to leave when asked to do so, a private arrest for this misdemeanor is lawful. Reasonable force may be used to carry out a private arrest. Mall security in particular is well versed on the law of private arrest and will do it. In general, a security guard who carries handcuffs has been trained and authorized by their employer to make a private arrest.
You may find http://www.bsis.ca.gov/ particularly interesting, as this is the agency which regulates security guards, both contract and proprietary.
It is absolutely true that private security (exception: contract security on military installations) may not seize personal property, delete photos, etc. Typically they call the police, and ask the police to document the incident. This makes the names of the people they are dealing with available. Then the company legal department can follow up with a restraining order, injunction, lawsuit for damages, etc.
Reply by Andrew Hudson, PhotoSecrets
November 8, 2011
Hi Andrew:
Excellent point. Thanks for the information. I will update my text accordingly soon.
Thank you for taking the time to help.
Andrew