Business Law 101 / BURGLARY AND TRESPASS 

By Albert Kelley

If you review the Monroe County Sheriff’s website, you will note that, aside from probation violations, probably the leading cause for arrest in Monroe County is trespass.  The question is what is trespass and what makes it different than burglary?

Basically, trespass means entering or remaining in a structure, conveyance (a vehicle), or other property without being authorized, licensed, or invited.  It also includes refusing to leave a structure or conveyance when requested to leave by the owner or their tenant. 

Burglary, on the other hand, also requires that the offender intend to commit a crime while entering or remaining in the structure, conveyance or other property.  In other words, if a person enters a property and unintentionally commits a crime, it is not deemed a burglary as there was no wrongful intent. The exception is if the crime is a forceable felony, meaning treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.  In the case of a forceable felony, no intent is required.

Normally a trespass is only a second-degree misdemeanor.  However, if the trespass is to a structure or conveyance and there is another person inside at the time of the trespass, it increases to a first-degree misdemeanor.  If the trespasser has a weapon or obtains a weapon during the trespass, the penalty increases to a third-degree felony. While it is never recommended for a property owner to take the law into their own hands, when the trespasser has a weapon, it is lawful for the property owner or tenant to reasonably detain the trespasser for a reasonable period of time. Doing so is not deemed false arrest, false imprisonment or wrongful detainer.

There are special rules for specific types of property.  In the case of a school, there is deemed a trespass if a person comes on any school property (including sports fields, parking lots or any school building) with no legitimate purpose or if the person is a student who has been suspended or expelled.  Such a trespass on a school is immediately a second-degree misdemeanor without warning. If the principal or their designee orders the person to leave and they fail to do so, the offense becomes a first-degree misdemeanor. If they have a weapon when trespassing, whether with warning or not, it is a third-degree felony.  Regardless of the possession of a weapon, the principal or any school security officer is authorized to detain the trespasser until law enforcement can arrive.

If the property is a construction site, an agricultural testing site, a horticulture site, or a domestic violence center, a trespass is deemed a third-degree felony.  It is also a third-degree felony if a person kills, attempts to kill or endangers any animal on private property without authorization.

The owner of undeveloped land can post no trespassing signs on the property.  To be effective, he signs must be painted in orange color, display the words “No Trespassing” in letters no less than 2 inches high and 1 inch wide either vertically or horizontally; posted so the bottom of the notice is not less than 3 feet from the ground or more than 5 feet from the ground; and placed no more than 500 feet apart on agricultural land. 

It is also deemed a trespass for anyone to post a notice on the ground or on trees of any property next to a highway without the property owner’s permission. To do so is a second-degree misdemeanor.

If a person breaks, mars, defaces or cuts any gap in a fence enclosing someone else’s property, it is a firs-degree misdemeanor.  If that fence is used to contain any animals, the crime becomes a third-degree felony. 

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University.  He is also the author of four law books: (“Basics of Business Law” “Basics of Florida’s Small Claims Court”, “Basics of Florida’s Landlord/Tenant Law” and “Basics of Starting a Florida Business” (Absolutely Amazing e-Books)). This article is being offered as a public service and is not intended to provide specific legal advice.  If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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