Is it trespassing if a person comes on a rural residence after he has been told to stay away?
Full Question:
In the state of Kansas, is it considered trespassing if a person comes on a rural residence after he has been told to stay off the property? The property in question is being used by my son's ex-wife. The person is a boyfriend of the ex-wife. If it is trespassing what action can be legally taken?
02/09/2009 |
Category: Real Property |
State: Kansas |
#15203
Answer:
Trespass is entering another person's property without permission of the owner or legal authority. If the trespass is with an illegal intent, it is a crime. Criminal trespass law is enforced by police, sheriffs, or park rangers. Trespass may also be a civil wrong (tort), such as interfering with an owner or tenant's use of the property by dumping waste or removing trees on the property. Civil trespass requires that the landowner initiate a private enforcement action in court to collect any damages for which the trespasser may be responsible, regardless of whether a crime has been committed. In order to recover damages for trespass, some damage, no matter how slight, must be caused. In addition to damages, a court may grant an injunction prohibiting any further continuing, repeated or permanent trespass.
Traditionally, for civil and criminal trespass, some level of intent is required. Thus, the trespasser must not simply unwittingly traverse another's land but must knowingly go onto the property without permission. Knowledge may be inferred when the owner tells the trespasser not to go on the land, when the land is fenced, or when a "no trespassing" sign in posted. A trespasser would probably not be prosecuted if the land was open, the trespasser's conduct did not substantially interfere with the owner's use of the property, and the trespasser left immediately on request. The landowner may indicate, verbally or in writing, permission to enter onto the land. The existence of consent may be implied from the landowner's conduct, from custom, or from the circumstances. Consent may be implied if these factors exist: the landowner was unavailable to give consent and immediate action is necessary to save a life or prevent a serious injury.
In Kansas, trespassing is permitted by licensed hunters in order to pursue a wounded game bird or animal, except that if the owner of the land instructs the hunter to leave, the hunter must leave immediately. Any person who fails to leave such land when instructed is subject to the provisions of the criminal trespass law.
The following are Kansas statutes:
21-3721. Criminal trespass.
(a) Criminal trespass is:
(1) Entering or remaining upon or in any land, nonnavigable body of
water, structure, vehicle, aircraft or watercraft, other than railroad
property as defined in K.S.A. 21-3761, and amendments thereto, or nuclear
generating facility as defined in K.S.A. 2007 Supp. 66-2302, and amendments
thereto, by a person who knows such person is not authorized or privileged
to do so, and:
(A) Such person enters or remains therein in defiance of an order not to
enter or to leave such premises or property personally communicated to such
person by the owner thereof or other authorized person; or
(B) such premises or property are posted in a manner reasonably likely to
come to the attention of intruders, or are locked or fenced or otherwise
enclosed, or shut or secured against passage or entry; or
(C) such person enters or remains therein in defiance of a restraining
order issued pursuant to K.S.A. 60-1607, 60-3105, 60-3106, 60-3107,
60-31a05 or 60-31a06 or K.S.A. 2007 Supp. 38-2243, 38-2244 or 38-2255, and
amendments thereto, and the restraining order has been personally served
upon the person so restrained; or
(2) entering or remaining upon or in any public or private land or
structure in a manner that interferes with access to or from any health
care facility by a person who knows such person is not authorized or
privileged to do so and such person enters or remains thereon or therein in
defiance of an order not to enter or to leave such land or structure
personally communicated to such person by the owner of the health care
facility or other authorized person.
(b) As used in this section:
(1) "Health care facility" means any licensed medical care facility,
certificated health maintenance organization, licensed mental health
center, or mental health clinic, licensed psychiatric hospital or other
facility or office where services of a health care provider are provided
directly to patients.
(2) "Health care provider" means any person:
(A) Licensed to practice a
branch of the healing arts;
(B) licensed to practice psychology;
(C)
licensed to practice professional or practical nursing;
(D) licensed to
practice dentistry;
(E) licensed to practice optometry;
(F) licensed to
practice pharmacy;
(G) registered to practice podiatry;
(H) licensed as a
social worker; or
(I) registered to practice physical therapy.
(c)
(1) Criminal trespass is a class B nonperson misdemeanor.
(2) Upon a conviction of a violation of subsection (a)(1)(C), a person
shall be sentenced to not less than 48 consecutive hours of imprisonment
which must be served either before or as a condition of any grant of
probation or suspension, reduction of sentence or parole.
(d) This section shall not apply to a land surveyor, licensed pursuant to
article 70 of chapter 74 of the Kansas Statutes Annotated, and amendments
thereto, and such surveyor's authorized agents and employees who enter upon
lands, waters and other premises in the making of a survey.
60-3105. Emergency relief.
(a) When the court is unavailable, a verified petition, accompanied by a
proposed order, may be presented to any district judge. The judge may grant
relief in accordance with subsection (a)(1), (2), (4) or (5) of K.S.A.
60-3107 and amendments thereto, or any combination thereof, if the judge
deems it necessary to protect the plaintiff or minor child or children from
abuse. An emergency order pursuant to this subsection may be granted ex
parte. Immediate and present danger of abuse to the plaintiff or minor
child or children shall constitute good cause for the entry of the
emergency order.
(b) An emergency order issued under subsection (a) shall expire on 5:00
p.m. on the first day when the court resumes court business. At that time,
the plaintiff may seek a temporary order from the court.
(c) The judge shall note on the petition and any order granted, including
any documentation in support thereof, the filing date, together with the
judge's signature, and shall deliver them to the clerk of the court on the
next day of the resumption of business of the court.
60-3106. Hearings; temporary orders pending hearing, modification.
(a) Within 20 days of the filing of a petition under this act a hearing
shall be held at which the plaintiff must prove the allegation of abuse by
a preponderance of the evidence and the defendant shall have an opportunity
to present evidence on the defendant's behalf. Upon the filing of the
petition, the court shall set the case for hearing. At the hearing, the
court shall advise the parties of the right to be represented by counsel.
(b) Prior to the hearing on the petition and upon a finding of good cause
shown, the court on motion of a party may enter such temporary relief
orders in accordance with subsection (a)(1), (2), (4) or (5) of K.S.A.
60-3107 and amendments thereto, or any combination thereof, as it deems
necessary to protect the plaintiff or minor children from abuse. Temporary
orders may be granted ex parte. Immediate and present danger of abuse to
the plaintiff or minor children shall constitute good cause for purposes of
this section. No temporary order shall have the effect of modifying an
existing order granting legal custody, residency, visitation or parenting
time unless there is sworn testimony at a hearing to support a showing of
good cause.
(c) If a hearing under subsection (a) is continued, the court may make or
extend such temporary orders under subsection (b) as it deems necessary.
60-3107. Orders for relief of abuse, procedure; modifications; inconsistent
orders; violation of orders, criminal violations and penalties.
(a) The court may approve any consent agreement to bring about a
cessation of abuse of the plaintiff or minor children or grant any of the
following orders:
(1) Restraining the defendant from abusing, molesting or interfering with
the privacy or rights of the plaintiff or of any minor children of the
parties. Such order shall contain a statement that if such order is
violated, such violation may constitute assault as provided in K.S.A.
21-3408, and amendments thereto, battery as provided in K.S.A. 21-3412, and
amendments thereto, domestic battery as provided in K.S.A. 2005 Supp.
21-3412a, and amendments thereto and violation of a protective order as
provided in K.S.A. 2005 Supp. 21-3843, and amendments thereto.
(2) Granting possession of the residence or household to the plaintiff to
the exclusion of the defendant, and further restraining the defendant from
entering or remaining upon or in such residence or household, subject to
the limitation of subsection (d). Such order shall contain a statement that
if such order is violated, such violation shall constitute criminal
trespass as provided in subsection (c) of K.S.A. 21-3721, and amendments
thereto, and violation of a protective order as provided in K.S.A. 2005
Supp. 21-3843, and amendments thereto. The court may grant an order, which
shall expire 60 days following the date of issuance, restraining the
defendant from cancelling utility service to the residence or household.
(3) Requiring defendant to provide suitable, alternate housing for the
plaintiff and any minor children of the parties.
(4) Awarding temporary custody and residency and establishing temporary
parenting time with regard to minor children.
(5) Ordering a law enforcement officer to evict the defendant from the
residence or household.
(6) Ordering support payments by a party for the support of a party's
minor child, if the party is the father or mother of the child, or the
plaintiff, if the plaintiff is married to the defendant. Such support
orders shall remain in effect until modified or dismissed by the court or
until expiration and shall be for a fixed period of time not to exceed one
year. On the motion of the plaintiff, the court may extend the effect of
such order for 12 months.
(7) Awarding costs and attorney fees to either party.
(8) Making provision for the possession of personal property of the
parties and ordering a law enforcement officer to assist in securing
possession of that property, if necessary.
(9) Requiring any person against whom an order is issued to seek
counseling to aid in the cessation of abuse.
(10) Ordering or restraining any other acts deemed necessary to promote
the safety of the plaintiff or of any minor children of the parties.
(b) No protection from abuse order shall be entered against the plaintiff
unless:
(1) The defendant properly files a written cross or counter petition
seeking such a protection order;
(2) the plaintiff had reasonable notice of the written cross or counter
petition by personal service as provided in subsection (d) of K.S.A.
60-3104, and amendments thereto; and
(3) the issuing court made specific findings of abuse against both the
plaintiff and the defendant and determined that both parties acted
primarily as aggressors and neither party acted primarily in self-defense.
(c) Any order entered under the protection from abuse act shall not be
subject to modification on ex parte application or on motion for temporary
orders in any action filed pursuant to K.S.A. 60-1601 et seq., or K.S.A.
38-1101 et seq., and amendments thereto. Orders previously issued in an
action filed pursuant to K.S.A. 60-1601 et seq., or K.S.A. 38-1101 et seq.,
and amendments thereto, shall be subject to modification under the
protection from abuse act only as to those matters subject to modification
by the terms of K.S.A. 60-1610 et seq., and amendments thereto, and on
sworn testimony to support a showing of good cause. Immediate and present
danger of abuse to the plaintiff or minor children shall constitute good
cause. If an action is filed pursuant to K.S.A. 60-1610 et seq., or K.S.A.
38-1101 et seq., and amendments thereto, during the pendency of a
proceeding filed under the protection from abuse act or while an order
issued under the protection from abuse act is in effect, the court, on
final hearing or on agreement of the parties, may issue final orders
authorized by K.S.A. 60-1610 and amendments thereto, that are inconsistent
with orders entered under the protection from abuse act. Any inconsistent
order entered pursuant to this subsection shall be specific in its terms,
reference the protection from abuse order and parts thereof being modified
and a copy thereof shall be filed in both actions. The court shall consider
whether the actions should be consolidated in accordance with K.S.A. 60-242
and amendments thereto.
(d) If the parties to an action under the protection from abuse act are
not married to each other and one party owns the residence or household,
the court shall not have the authority to grant possession of the residence
or household under subsection (a)(2) to the exclusion of the party who owns
it.
(e) Subject to the provisions of subsections (b), (c) and (d), a
protective order or approved consent agreement shall remain in effect until
modified or dismissed by the court and shall be for a fixed period of time
not to exceed one year, except that, on motion of the plaintiff, such
period may be extended for one additional year.
(f) The court may amend its order or agreement at any time upon motion
filed by either party.
(g) No order or agreement under the protection from abuse act shall in
any manner affect title to any real property.
(h) If a person enters or remains on premises or property violating an
order issued pursuant to subsection (a)(2), such violation shall constitute
criminal trespass as provided in subsection (c) of K.S.A. 21-3721, and
amendments thereto, and violation of a protective order as provided in
K.S.A. 2005 Supp. 21-3843, and amendments thereto. If a person abuses,
molests or interferes with the privacy or rights of another violating an
order issued pursuant to subsection (a)(1), such violation may constitute
assault as provided in K.S.A. 21-3408, and amendments thereto, battery as
provided in K.S.A. 21-3412, and amendments thereto, domestic battery as
provided in K.S.A. 2005 Supp. 21-3412a, and amendments thereto, and
violation of a protective order as provided in K.S.A. 2005 Supp. 21-3843,
and amendments thereto.
60-31a05. Hearing; temporary orders pending hearing.
(a) Within 20 days of the filing of a petition under the protection from
stalking act a hearing shall be held at which the plaintiff must prove the
allegation of stalking by a preponderance of the evidence and the defendant
shall have an opportunity to present evidence on the defendant's behalf.
Upon the filing of the petition, the court shall set the case for hearing.
At the hearing, the court shall advise the parties of the right to be
represented by counsel.
(b) Prior to the hearing on the petition and upon a finding of good cause
shown, the court on motion of a party may enter such temporary relief
orders in accordance with K.S.A. 60-31a06 and amendments thereto, or any
combination thereof, as it deems necessary to protect the victim from being
stalked. Temporary orders may be granted ex parte on presentation of a
verified petition by the victim supporting a prima facie case of stalking.
(c) If a hearing under subsection (a) is continued, the court may make or
extend such temporary orders under subsection (b) as it deems necessary.
60-31a06. Orders; time periods; amendments; costs.
(a) The court may issue a protection from stalking order granting any of
the following orders:
(1) Restraining the defendant from following, harassing, telephoning,
contacting or otherwise communicating with the victim. Such order shall
contain a statement that if such order is violated such violation may
constitute stalking as provided in K.S.A. 21-3438, and amendments thereto,
and violation of a protective order as provided in K.S.A. 2005 Supp.
21-3483, and amendments thereto.
(2) Restraining the defendant from abusing, molesting or interfering with
the privacy rights of the victim. Such order shall contain a statement that
if such order is violated, such violation may constitute stalking as
provided in K.S.A. 21-3438, and amendments thereto, assault as provided in
K.S.A. 21-3408, and amendments thereto, battery as provided in K.S.A.
21-3412, and amendments thereto, and violation of a protective order as
provided in K.S.A. 2005 Supp. 21-3843, and amendments thereto.
(3) Restraining the defendant from entering upon or in the victim's
residence or the immediate vicinity thereof. Such order shall contain a
statement that if such order is violated, such violation shall constitute
criminal trespass as provided in subsection (a)(1)(C) of K.S.A. 21-3721,
and amendments thereto, and violation of a protective order as provided in
K.S.A. 2005 Supp. 21-3843, and amendments thereto.
(4) Any other order deemed necessary by the court to carry out the
provisions of this act.
(b) A protection from stalking order shall remain in effect until
modified or dismissed by the court and shall be for a fixed period of time
not to exceed one year, except that, on motion of the plaintiff, such
period may be extended for one additional year. Before the expiration of an
order for protection from stalking, a victim, or a parent on behalf of the
victim, may request an extension of the protection from stalking order for
up to one additional year on showing of continuing threat of stalking.
(c) The court may amend its order at any time upon motion filed by either
party.
(d) The court shall assess costs against the defendant and may award
attorney fees to the victim in any case in which the court issues a
protection from stalking order pursuant to this act. The court may award
attorney fees to the defendant in any case where the court finds that the
petition to seek relief pursuant to this act is without merit.
