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We've had 4 sets of neighbors kids grow up around us with no issue. Nice kids, nice parents, etc. The latest family has two young boys who like to camp out on my lawn and in my garden. I'm aware of the law regarding an attractive nuisance, the need to secure a pool or treehouse etc. In this case, the kids aren't the issue. The parent has been known to be litigious, and I'd like to protect myself in advance from getting sued for something nonsensical, like his son running where he shouldn't and hurting himself. Like any New England property there are small decorative retaining walls as well as large granite stones serving that function.

Short of fencing in the entire perimeter of my land, is there any preemptive legal thing to do? Basically saying "Look, you kids are running all over my property. I've warned them that thy can get hurt falling on a rock or wall. Now, you are warned as well. Please remind your children to play in their own yard." If nothing like this, how to handle this situation?

  • I mean if you are deathly concerned about litigation, tell your neighbors you don't want their kids in the yard. If they persist to be found there, call the cops and report that there are people (I wouldn't say kids because then they'll probably shrug it off) trespassing on your land. – Viktor Sep 6 '15 at 14:08
  • Amusingly related answer here (addresses "duty owed trespassers"). – feetwet Sep 9 '15 at 15:06
  • @feetwet - ha! Yes, funny related question. Coincidentally, hot sauce is what I've sprayed in some spots that birds were building nests. Better to scare them away than to find the squirrels broke all the eggs. – JTP - Apologise to Monica Sep 9 '15 at 15:44
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I would serve the parents (certified mail), with a "cease and desist" letter, telling them that the children are repeatedly trespassing on your property and that you want them to stop; even get the police involved if you have to. I know it sounds harsh, but you said New England; that's where I live and I know the trespass laws are not in your favor ... especially when it comes to kids. Take Connecticut as an example: This is their law on trespass and kids (not just attractive nuisance!):

A possessor of land owes each person who enters his land a certain duty of care based on the person's status. The legal significance is that a possessor of land has the duty to an invitee to inspect the premises for hidden defects and to repair or erect safeguards, if necessary, to make the premises reasonably safe. He has no duty to inspect or to repair or erect safeguards for licensees. But he is liable if he knows of a condition, realizes it involves unreasonable risk, has reason to believe the licensee will not discover it, and he permits the licensee to enter or remain without warning or making the condition reasonably safe.

Generally, an owner owes trespassers no duty of care because he has no reason to expect them to be on his property. Therefore, he does not have to warn or protect them from potentially harmful conditions on the property. However, an exception applies if a property owner knows, or has reason to anticipate, that children will trespass on his land. In this case, a special duty arises and the owner must take steps to protect children from any of the property's dangerous conditions. The post you just made indicates even you think that the rock walls, or other "normal garden features" could be dangerous; and they can be!

The law requires that you take reasonable steps to eliminate the condition or by otherwise keeping children away from it.

DUTY OWED TO TRESPASSER

In Connecticut, the following rules apply to a possessor of land with respect to a trespasser.

  1. He may not intentionally harm the trespasser or lay a trap for him.
  2. The trespasser is entitled to due care after his presence is actually known.
  3. There is no duty owed regarding the condition of the premises.
  4. The possessor of land has no duty to trespassers if he is engaged in a dangerous activity until the person's presence is know.
  5. The possessor of land has no duty to warn trespassers of dangerous hidden conditions (Conn. Law of Torts, § 47).

Duty Owed to Trespassing Children

Connecticut's appellate courts have adopted the Restatement (Second) of Torts rule regarding the duty of a property owner to trespassing children (Duggan v. Esposito, 178 Conn. 156 (1979), Neal v. Shiels, Inc., 166 Conn. 3 (1974), Greene v. DiFazio, 148 Conn. 419 (1961), Wolfe v. Rehbein, 123 Conn. 110 (1937), Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195 (1984)).

Under this rule, if an owner knows or has reason to know that children will be on his property, he has the duty to protect them from injury by either fixing the harmful condition or ensuring that the children will not have access to that part of the property.

The rule states that a possessor of land is liable for harm to trespassing children caused by an artificial condition on the land if (1) the possessor knows or has reason to know that children are likely to trespass in that place, (2) the condition is one the possessor knows or has reason to know and should realize will involve an unreasonable risk of death or serious bodily harm to children, (3) the children because of their youth do not discover the condition or realize the risk, (4) the utility of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to children involved, and (5) the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect children (Restatement (Second), 2 Torts 339).

Put in the letter that you are disclaiming any liability for injury to them that may occur on your property, and make them aware of all the ways they could be injured – so they've been informed. You don't have a duty to remove rock walls because unsupervised kids jump off them. They are not invitees, they are trespassers. So make it known you do not want them on the land and for any further breach you will call the police. Because otherwise you could be responsible.

Using CT again as an example, you could include the legal statute about trespass in your notice:

Trespass Crimes and Infractions

A person commits first degree criminal trespass when (1) he enters or remains in a building or any other premises after the owner or an authorized person personally communicates an order to leave or not enter and (2) he knows that he is not licensed or privileged to be there. This crime also applies to entering or remaining at a place in violation of a retraining or protective order. This is a class A misdemeanor punishable by up to one year in prison, a fine of up to $2,000, or both (CGS § 53a-107). A person commits second degree criminal trespass when he enters or remains in a building knowing that he is not licensed or privileged to do so. This is a class B misdemeanor punishable by up to six months in prison, a fine of up to $1,000, or both (CGS § 53a-108).

A person commits third degree criminal trespass when, knowing he is not licensed or privileged to do so, he enters or remains in any premises for hunting, trapping, or fishing or enters or remains in premises that are posted in a manner prescribed by law or reasonably likely to come to the attention of intruders or that are fenced or enclosed to exclude intruders. This also applies to state lands near state institutions. This is a class C misdemeanor punishable by up to three months in prison, a fine of up to $500, or both (CGS § 53a-109).

It is a defense to these crimes if (1) the building was abandoned, (2) the premises at the time of entry were open to the public and the person complied with all lawful conditions on access and remaining on the premises, or (3) the person reasonably believed that the owner (or someone else with the power to do so) would have or did license him to enter or remain on the premises (CGS § 53a-110).

A person commits simple trespass if, knowing he is not licensed or privileged to do so, he enters premises without intent to harm any property. This is an infraction punishable by a fine, currently $77 plus costs and fees if paid by mail (CGS § 53a-110a). A separate infraction covers trespass on railroad property when a person enters or remains on the property without lawful authority or consent of the railroad carrier. This is currently a $121 fine plus costs and fees if paid by mail (CGS § 53a-110d).

You could just substitute your state's laws if you're in MA, or RI, or wherever. You could have a lawyer draft this letter for probably $200 (free if you have a friend who practices :~) and that will really scare them.

Tell them they will be liable for any damage the kids cause/or may cause to your property. But without doubt, put them on notice!

  • Did you mean to link to something in CGS at the end of your first paragraph? I assumed the second paragraph was a quote from CGS, and formatted it accordingly, but not sure. – feetwet Sep 9 '15 at 15:09
  • You would have a problem with much of this if you were in the UK as trespass is not a criminal offence, except in certain places such as Military establishments. The only remedy a landowner has against a trespasser is the use of 'reasonable force' to evict them (after requests for them to leave have failed). If gypsies encamp on your land you have to get a court order to have them removed by the police. But there is a tort of nuisance, and that is how you would deal with these children. The parents could be held to be committing 'nuisance' for which there are legal remedies. – WS2 Sep 24 '15 at 19:18
  • Trespass, the act, is not in and of itself illegal in the US either (accept in places like you mention). However, once you put someone on notice that they are not welcomed, further trespass if established, is prima facie evidence of (1) the tort of trespass; and (2) if you post your property no trespass or give notice, or acquire an order restraining them form trespass, then it can become a criminal issue. Even if not, the police will intervene as peace officers and require them to leave, giving warning as to the potential consequences and adding about availability of no trespass order/PFH. – gracey209 Sep 24 '15 at 20:27
  • I would say that the "No Trespassing" signs would be cheaper than the Lawyer option. Keep it in the back pocket if the kids don't follow the signage. This should be a slow escalation, the parents are already litigious... you don't want them filing some suit if it can be avoided. – hszmv Sep 19 at 12:34
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  1. Install a remote controlled sprinkler in the yard. When you see the kids outside, turn on the sprinkler. Be careful that they don't know it's remote controlled.
  2. If they are jumping fences, start growing thorn bushes.
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    I think the sprinkler should be fine. I would recommend against the thorn bushes. There have been very strange lawsuits in the past with very strange verdicts. One example is that a shopkeeper set up a net to capture any robbers and the robber ended up stranded for 3 days because it was over an extended weekend. The robber sued and won a significant amount of money. I am afraid that very lawsuit prone parents would sue you for intentionally trying to hurt their children. – Viktor Sep 6 '15 at 14:10
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    I specifically don't want anyone hurt. If the whole yard were level grass I couldn't care less about kids playing. The concern is them get hurt and me getting sued. – JTP - Apologise to Monica Sep 6 '15 at 15:04
  • @viktor, You cannot lay traps, ever! – gracey209 Sep 6 '15 at 18:16
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    @gracey209 you can justify a sprinkler because you're watering your lawn. – Viktor Sep 6 '15 at 18:27
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    I was referring to thorns... But even the sprinkler, the way you're suggesting it be used, could get you in trouble. If the kids slips and breaks his leg because you set a sprinkler trap... You're in trouble. The law specifically proscribes the use of traps of any kind. – gracey209 Sep 6 '15 at 18:31

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