Private Land Ownership comes with Duties and Standards
Like it or not, private landowners owe certain duties and standards of care to those that enter their land.
For example, a private landowner owes no duty of care to keep the private property safe for the use of others if a fee was not charged for allowing to access the land. Private landowners also have no duty to warn people who were not charged an access fee to enter the land. However, this does not include willful or malicious failure to warn against dangerous conditions. For example, failing to inform an individual about an open, uncovered well may constitute willful and malicious behavior on the part of the private landowner.
On the flip side, a person accessing private land for the purpose of hunting or other recreational activities also has an obligation while on the land to exercise care in the sue of the land. This would apply in cases where a private landowner consented to other hunting or recreating on private land or where he was aware that people were hunting and did nothing. If a private landowner receives economic benefit by charging a fee to come on his land, he has a duty to make the premises safe or to post signs pointing out potential hazards.
In Utah, a trespasser is a person who enters or remains upon or in possession of the land of another without the possessor’s consent. To be legally guilty of trespass is to enter unlawfully on the land of another. Trespass may be prosecuted under two laws: the Utah Wildlife Code 23-20-14 and 76-6-206.
The Utah Wildlife law states that “while taking wildlife or engaging in wildlife related activities, a person may not: 1) without permission of the owner or person in charge, enter upon privately-owned land of any person, firm or corporation, 2) refuse to immediately leave the private land if requested, or 3) obstruct any entrance or exit to private property.
What is “permission” or how is it defined? Utah law defines permission as “written authorization from the owner or person in charge to enter upon private land that is either cultivated or property posted and shall include: 1) the signature of the owner or person in charge, 2) the name of the person begin given permission, 3) the appropriate dates, and 4) a general description of the property (23-20-14).
Nearly thirty years ago, compromise legislation was passed that required written permission to access private property, whereas before, only verbal permission was necessary. Landowners believed it was too easy to lie about having permission. Written permission gives law enforcement better tools to write citations and get convictions of trespass.
Over the years, posting requirements have changed. Today, private landowners are not required to post “No Trespass” signs on cultivated lands. Utah law defines “cultivated lands” as “land that is readily identifiable as land whose soil is loosened or broken up for the raising of crops or pasturage which is artificially irrigated (23-20-14 (1a)).” Non-cultivated lands must be property posted and Utah law defines “properly posted” as “signs prohibiting trespass or bright yellow, bright orange or fluorescent paint are clearly displayed at all corners, fishing streams crossing property lines, roads, gates and rights-of-way entering the land, or in a manner that would reasonably be expected to be seen by a person in the area (23-20-14 (1d)).” Signs must be no smaller than 100 square inches. If metal fence posts are used, the entire exterior side must be painted.
Under the wildlife law, trespass is a class B Misdemeanor and also provides for license, tag and permit revocation by the Utah Division of Wildlife Resources Board. In the case of repeat offenders, the law requires revocation.
Although Utah law is specific in defining properly posted, there are many differing interpretations of this phrase by trespassers, law enforcement personnel, county attorneys and the courts. Because of these differing interpretations, known trespassers have not been prosecuted or many have managed to win their cases in court. This has led to the continued realities and challenges associated with preventing trespass.
Utah law also requires Utah’s Division of Wildlife Resources to educate hunters and anglers on trespass laws. In all hardcopy and online Division Guidebooks, there is a statement that attempts to educate outdoorsmen. It states, “The Division cannot guarantee access to private land, and the agency does not have the names of landowners who own property where hunts occur. Under certain circumstances, you must obtain written permission from the landowner or the landowner’s authorized representative before hunting or trapping on private lands. Ideally, you should have permission before you apply for a permit. If you obtain written permission in advance, you know you’ll be able to use the permit if you draw it.” Of course, preaching or educating does not always change attitudes. To be effective at minimizing trespass, both education and punishment must exist.
Utah Farm Bureau supports laws that increase penalties for trespassers, exempt landowners from liability for injuries or deaths that occur to trespassers and restrict hunting privileges for those who are convicted of trespass.
Unfortunately, passing laws or posting private land may not be enough to prevent trespass. Repeat trespassers have become very sophisticated at this activity. Trespass signs have a way of disappearing and repeat trespassers seem to have a knack for finding those odd property corners to access properties. To further protect yourself against trespass, once your property is property posted, it is a good idea to document your efforts with photographs or video.
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