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Fair trespass

Ben Depoorter (UGent)
(2011) COLUMBIA LAW REVIEW. 111(5). p.1090-1135
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Abstract
Trespass law is commonly presented as a relatively straightforward doctrine that protects landowners against intrusions by opportunistic trespassers. Though widely supported in academic commentary and scholarship, this conventional viewpoint of trespass law lacks empirical and analytical grounding In fact, the interests involved in trespass disputes often extend beyond the interests of a private landowner, affecting broad societal interests such as the free flow of information, public safety and health, and similar considerations. This Essay attempts to align these observations with a doctrine more attuned to reality. To that end, it develops a new doctrinal framework for determining the limits of a property owner's right to exclude. Adopting the doctrine of fair use from copyright law, the Essay introduces the concept of "fair trespass" to property law doctrine. When deciding trespass disputes, courts should evaluate the following factors: (1) the nature and character of the trespass; (2) the nature of the protected property; (3) the amount and substantiality of the trespass; and (4) the impact of the trespass on the owner's property interest. The main advantages of this proposal are twofold. First, this novel doctrine more carefully weighs the interests of society in access against the interests of property owners in exclusion. Second, by replacing the existing patchwork of ad hoc situations where courts excuse trespassory acts, this proposal provides a more coherent and consistent context in which to adjudicate trespass conflicts. By developing a balancing test to assess trespass claims, the proposed doctrine seeks to protect the rights of property owners on the basis of a more explicit and predictable framework, while at the same time safeguarding the societal interests in access.
Keywords
ADVERSE POSSESSION, ECONOMIC-ANALYSIS, PRIVATE PROPERTY, RIGHTS, LAW, UNCERTAINTY, SOVEREIGNTY, COPYRIGHT, NUISANCE, EXCLUDE

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Citation

Please use this url to cite or link to this publication:

Chicago
Depoorter, Ben. 2011. “Fair Trespass.” Columbia Law Review 111 (5): 1090–1135.
APA
Depoorter, B. (2011). Fair trespass. COLUMBIA LAW REVIEW, 111(5), 1090–1135.
Vancouver
1.
Depoorter B. Fair trespass. COLUMBIA LAW REVIEW. 2011;111(5):1090–135.
MLA
Depoorter, Ben. “Fair Trespass.” COLUMBIA LAW REVIEW 111.5 (2011): 1090–1135. Print.
@article{1169374,
  abstract     = {Trespass law is commonly presented as a relatively straightforward doctrine that protects landowners against intrusions by opportunistic trespassers. Though widely supported in academic commentary and scholarship, this conventional viewpoint of trespass law lacks empirical and analytical grounding In fact, the interests involved in trespass disputes often extend beyond the interests of a private landowner, affecting broad societal interests such as the free flow of information, public safety and health, and similar considerations. This Essay attempts to align these observations with a doctrine more attuned to reality. To that end, it develops a new doctrinal framework for determining the limits of a property owner's right to exclude. Adopting the doctrine of fair use from copyright law, the Essay introduces the concept of {\textacutedbl}fair trespass{\textacutedbl} to property law doctrine. When deciding trespass disputes, courts should evaluate the following factors: (1) the nature and character of the trespass; (2) the nature of the protected property; (3) the amount and substantiality of the trespass; and (4) the impact of the trespass on the owner's property interest. The main advantages of this proposal are twofold. First, this novel doctrine more carefully weighs the interests of society in access against the interests of property owners in exclusion. Second, by replacing the existing patchwork of ad hoc situations where courts excuse trespassory acts, this proposal provides a more coherent and consistent context in which to adjudicate trespass conflicts. By developing a balancing test to assess trespass claims, the proposed doctrine seeks to protect the rights of property owners on the basis of a more explicit and predictable framework, while at the same time safeguarding the societal interests in access.},
  author       = {Depoorter, Ben},
  issn         = {0010-1958},
  journal      = {COLUMBIA LAW REVIEW},
  keyword      = {ADVERSE POSSESSION,ECONOMIC-ANALYSIS,PRIVATE PROPERTY,RIGHTS,LAW,UNCERTAINTY,SOVEREIGNTY,COPYRIGHT,NUISANCE,EXCLUDE},
  language     = {eng},
  number       = {5},
  pages        = {1090--1135},
  title        = {Fair trespass},
  volume       = {111},
  year         = {2011},
}

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