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Fair Trespass

Ben Depoorter

University of California Hastings College of Law; Ghent University - Center for Advanced Studies in Law & Economics

December 1, 2010

Columbia Law Review, Vol. 111, No. 5, 2011

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 safe-guarding the societal interests in access.

Number of Pages in PDF File: 47

Keywords: property law, trespass, fair use

JEL Classification: K0, K22

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Date posted: July 13, 2011  

Suggested Citation

Depoorter, Ben, Fair Trespass (December 1, 2010). Columbia Law Review, Vol. 111, No. 5, 2011. Available at SSRN: http://ssrn.com/abstract=1883952

Contact Information

Ben Depoorter (Contact Author)
University of California Hastings College of Law ( email )
200 McAllister Street
San Francisco, CA 94102
United States

Ghent University - Center for Advanced Studies in Law & Economics ( email )
Ghent Univ. Law School
Universiteitstraat 4
Gent, 9000
Feedback to SSRN

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