Trespassers on a lease

[trophyparadise]

I saw a previous question about trespassers and you responded that only the landowner can prosecute. What about a lessee? If I have a written lease for a property giving me exclusive access can I pursue charges against a trespasser? Is a hunting lease different than a farming lease?


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[morrison]

The 'Consent to use private land' statute posted below is very clear that the permission has to be from the "owner or tenant of the land". Therefore, only the owner or tenant of the land would be able to swear or affirm to the fact that the individual did NOT have their permission. The 'Criminal trespass' statute states "the person or the person's agent". This may allow for a lessee to be listed in writing as the 'agent' of the landowner. However, It has been my experience that the prosecutor's are more confident in a case when it is the actual owner of the property versus another party. Most officers are going to want to verify that the landowner did NOT want the individual to be on the property prior to taking a law enforcement action.

Under the criminal trespass, it shows a difference between an agricultural lease and a hunting lease by allowing for a person with interest in the agricultural operation to be an authorized person.

I would recommend that when you have the lease written that a paragraph be added that not only states that you have exclusive access and hunting privileges but that the landowner is willing to prosecute those individuals found to be on the property without consent or criminal trespass. This would provide documentation that the officer and prosecutor could use for filing charges.

I have posted the statutes below. Let me know if you have any other questions.

IC 14-22-10-1 Consent to use private land
Sec. 1. A person may not:
(1) fish, hunt, trap, or chase;
(2) shoot with any kind of firearm or archery equipment;
(3) search for or gather any plant life (defined as the members of the kingdoms Fungi and Plantae);or
(4) search for or gather any artifacts (as defined in IC 14-21-1-2);
upon privately owned land without having the consent of the owner or tenant of the land.

IC 35-43-2-2 Criminal trespass; denial of entry; permission to enter; exceptions
Sec. 2. (a) As used in this section, "authorized person" means a person authorized by an agricultural operation to act on behalf of the agricultural operation.
(b) A person who:
(1) not having a contractual interest in the property, knowingly or intentionally enters the real property of another person after having been denied entry by the other person or that person's agent;
(2) not having a contractual interest in the property, knowingly or intentionally refuses to leave the real property of another person after having been asked to leave by the other person or that person's agent;
(3) accompanies another person in a vehicle, with knowledge that the other person knowingly or intentionally is exerting unauthorized control over the vehicle;
(4) knowingly or intentionally interferes with the possession or use of the property of another person without the person's consent;
(5) not having a contractual interest in the property, knowingly or intentionally enters the:
(A) property of an agricultural operation that is used for the production, processing, propagation, packaging, cultivation, harvesting, care, management, or storage of an animal, plant, or other agricultural product, including any pasturage or land used for timber management, without the consent of the owner of the agricultural operation or an authorized person; or
(B) dwelling of another person without the person's consent;
(6) knowingly or intentionally:
(A) travels by train without lawful authority or the railroad carrier's consent; and
(B) rides on the outside of a train or inside a passenger car, locomotive, or freight car, including a boxcar, flatbed, or container without lawful authority or the railroad carrier's consent;
(7) not having a contractual interest in the property, knowingly or intentionally enters or refuses to leave the property of another person after having been prohibited from entering or asked to leave the property by a law enforcement officer when the property is vacant or designated by a municipality or county enforcement authority to be abandoned property or an abandoned structure (as defined in IC 36-7-36-1);
(8) not having a contractual interest in the property, knowingly or intentionally enters the real property of an agricultural operation (as defined in IC 32-30-6-1) without the permission of the owner of the agricultural operation or an authorized person, and knowingly or intentionally engages in conduct that causes property damage to:
(A) the owner of or a person having a contractual interest in the agricultural operation;
(B) the operator of the agricultural operation; or
(C) a person having personal property located on the property of the agricultural operation; or
(9) knowingly or intentionally enters the property of another person after being denied entry by a court order that has been issued to the person or issued to the general public by conspicuous posting on or around the premises in areas where a person can observe the order when the property has been designated by a municipality or county enforcement authority to be a vacant property, an abandoned property, or an abandoned structure (as defined in IC 36-7-36-1);
commits criminal trespass, a Class A misdemeanor.
However, the offense is a Level 6 felony if it is committed on a scientific research facility, on a key facility, on a facility belonging to a public utility (as defined in IC 32-24-1-5.9(a)), on school property, or on a school bus or the person has a prior unrelated conviction for an offense under this section concerning the same property.
The offense is a Level 6 felony, for purposes of subdivision (8), if the property damage is more than seven hundred fifty dollars ($750) and less than fifty thousand dollars ($50,000).
The offense is a Level 5 felony, for purposes of subdivision (8), if the property damage is at least fifty thousand dollars ($50,000).
(c) A person has been denied entry under subsection (b)(1) when the person has been denied entry by means of:
(1) personal communication, oral or written;
(2) posting or exhibiting a notice at the main entrance in a manner that is either prescribed by law or likely to come to the attention of the public; or
(3) a hearing authority or court order under IC 32-30-6, IC 32-30-7, IC 32-30-8, IC 36-7-9, or IC 36-7-36. (d) A law enforcement officer may not deny entry to property or ask a person to leave a property under subsection (b)(7) unless there is reasonable suspicion that criminal activity has occurred or is occurring. (e) A person described in subsection (b)(7) violates subsection (b)(7) unless the person has the written permission of the owner, owner's agent, enforcement authority, or court to come onto the property for purposes of performing maintenance, repair, or demolition.
(f) A person described in subsection (b)(9) violates subsection (b)(9) unless the court that issued the order denying the person entry grants permission for the person to come onto the property.
(g) Subsections (b), (c), and (f) do not apply to the following:
(1) A passenger on a train.
(2) An employee of a railroad carrier while engaged in the performance of official duties.
(3) A law enforcement officer, firefighter, or emergency response personnel while engaged in the performance of official duties.
(4) A person going on railroad property in an emergency to rescue a person or animal from harm's way or to remove an object that the person reasonably believes poses an imminent threat to life or limb.
(5) A person on the station grounds or in the depot of a railroad carrier:
(A) as a passenger; or
(B) for the purpose of transacting lawful business.
(6) A:
(A) person; or
(B) person's:
(i) family member;
(ii) invitee;
(iii) employee;
(iv) agent; or
(v) independent contractor; going on a railroad's right-of-way for the purpose of crossing at a private crossing site approved by the railroad carrier to obtain access to land that the person owns, leases, or operates.
(7) A person having written permission from the railroad carrier to go on specified railroad property.
(8) A representative of the Indiana department of transportation while engaged in the performance of official duties.
(9) A representative of the federal Railroad Administration while engaged in the performance of official duties.
(10) A representative of the National Transportation Safety Board while engaged in the performance of official duties.