As a firm that deals with land use and property rights, the issue of trespass comes up often with clients. A common question regarding trespass claims is “what damages are available?” This is a fair question. When considering whether to begin a lawsuit, many clients wish to know if there will be financial compensation in addition to declaratory relief. The answer is that damages are available in trespass claims if you can prove them.
A trespass to land is any unauthorized intrusion or invasion of a plaintiff’s exclusive possession of his or her land. A common example is a neighbor who crosses your land without permission. The physical invasion does not need to be by the defendant personally. Causing an object to go onto another’s property could also be trespass. An example of this is diverting water onto another’s property.
While injunctive and/or declaratory relief is commonly available when trespass can be proven, when are damages available? The most obvious answer is that damages are available when the property has been damaged in some way. When the damage is not permanent, the court measures the amount in the cost of restoration of the property. Where the damage is permanent, the damages will usually be measured by the amount of reduction in property value. But this still leaves the problem of the trespassing neighbor who causes no property damage.
Even when there is not necessarily observable damage to property, damages may still be recoverable for trespass. In Michigan, actual damages include damages for mental distress and anguish. The Michigan Court of Appeals has previously held that when applied to a trespass case, “mental distress and anguish” include fear, anxiety, annoyance, and disturbance of one’s peace of mind. These are all feelings common to one who has had to bring a trespass claim. In other words, you can claim trespass damages even when there is no property damage. While the damages listed above must still be proven through evidence, the categories of damages available for a trespass claim are not as narrow as is commonly assumed.
The attorneys at Dalton & Tomich, PLC specialize in Michigan land use and property claims. You can view the author’s video on bringing a trespass claim here. If you believe someone is violating your property rights, please do not hesitate to contact us. We would be happy to speak with you.