The Right to Exclude!

By Martin Crim, Esq.

Should hunters be able to enter other people’s land to retrieve their dogs?

Should police be able to enter land and peek through your windows to search for drugs?

Should relatives be able to visit the graves of their family members on private land?

What if the land is posted “no trespassing”?

Few people would complain if firefighters or EMT’s responded to a genuine emergency on their property, and it’s hard to imagine a judge saying that they commit a civil or criminal wrong by coming onto your property to provide emergency help. This is true even if you didn’t give them your approval. Your approval is implied in a situation where public or private necessity outweighs the practicality of seeking permission to enter your property ahead of time.

But what is there is no emergency? What if you look out your kitchen window and see a stranger standing there on your property? You might, understandably, be alarmed. In this situation, you might assume that the law will back you up if you tell the stranger to leave. But in some circumstances, the law won’t back you up. So, what happens then? Let’s examine some circumstances where the right to exclude may not apply.

First, let us consider a situation of a property owner who wants a particular person to stay off their property. The property owner has the option to issue a “no trespassing letter” to that person, even if the property is normally open to the public, like a school or church. Local governments have a role in enforcing such letters, and in order to do so need to know things like “who has the authority to issue the letter” and “what if the person needs to enter the property for a valid purpose like voting or a parent-teacher conference”? For example, at my church, we have a policy saying exactly who has the authority to exclude someone from the building, to avoid having a situation where it’s unclear who is in charge.

A related issue comes up when a local government tries to protect homeowners’ right to exclude people. In that situation, it becomes a difficult task to specify who is permitted to approach your front door without your approval – and local governments have run afoul of the U.S. Constitution by providing a list of exceptions that allowed everyone but religious missionaries to do so.

Now, what if a homeowner wants to enforce a prohibition against certain visitors? In that case, homeowners have the option to post signs that prohibit certain classes of people – door-to-door salespeople, political canvassers, or whoever. But what consequences can a homeowner impose upon someone who violates this prohibition? If the trespasser harmed the homeowners in some way, maybe a court would let them collect money from the trespasser. Without some tangible harm, the legal remedy becomes less clear. But what are rights without enforcement mechanisms?

Next, let’s consider a scenario where a loved one’s grave is located on private property. A 1993 Virginia law says that relatives of people buried in a cemetery, along with people who own burial plots there and genealogists, can enter and cross private property to reach the cemetery. There are, limitations, of course. Such visitors have to give notice, limit their activities there, and act appropriately, but the private property owner where the cemetery is located has lost the ability to say, “keep out.” They’ve lost the right to exclude, at least in part.

Next, consider a warrantless police search. US Supreme Court precedents say that police can enter “open fields” even if there are signs warning against entry and fences to keep people out. Under these circumstances, the police can also search your property using aircraft within “navigable airspace,” which means that the government took your right to exclusive use of the airspace over your property and used it to reduce the scope of your right to privacy.

Then we come to the hunting dogs. There’s a case pending in the courts right now that challenges Virginia’s law giving certain hunters the right to retrieve their dogs from other people’s lands. The plaintiffs are property owners who claim that they have been damaged by these dogs running loose on their property. The pending lawsuit builds off a US Supreme Court case that said a company could exclude union activity on its property.

Of possible relevance to the hunting dog case is the portion of the Virginia Constitution that says the people have a right to hunt, fish, and harvest game, subject to laws passed by the General Assembly. The Virginia Constitution also says that the right to private property is “fundamental,” which presumably means that it carries heavier weight than ordinary rights. Those competing rights collide with each other when hunters want to retrieve their dogs.

In some countries, there is a “right to roam,” which protects customary rights to travel, particularly in forests and coastal lands. In the US, a similar right protects “navigable waterways,” which allows people to use bodies of water that are “susceptible for use, by themselves or in connection with other waters, as highways for substantial interstate or foreign commerce.” That’s subject to a lot of interpretation – and potential abuse.

In law school, students read a case about someone sailing on a lake who ties up at a pier during a storm, even though told not to do so. The principle being taught there is the doctrine of necessity, which forms a defense against the claim that the sailors were trespassing. There is a fundamental moral principle that the right to exclude people from your property has to yield to their right to remain alive in an emergency. But that raises other questions, such as “what constitutes an emergency?”

As that brief survey shows, the right to exclude is an important aspect of the right to property, but like most rights, it is not absolute. Legislators and courts will continue to have to balance competing rights. Businesses, property owners, local governments, and others can’t rely on basic principles like the “right to exclude” because there are often competing principles that affect the legal rights in issue.

If you have a property rights problem, you should consult an attorney to learn your rights and how you might enforce those rights. You should also be cautious dealing with that stranger standing on your property and don’t assume that your property rights are the only thing the law cares about. I have been practicing in this area of the law for 30 years and encourage you to reach out if you have any questions regarding your right to exclude or about what circumstance may allow someone to enter your property without your consent.

Martin Crim is a shareholder at Vanderpool, Frostick & Nishanian, and has been practicing law for over thirty years, primarily for cities, towns, and other local governments. If you have additional questions or concerns contact Martin Crim at mcrim@vfnlaw.com or call us at 703-369-4738.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer