Washington Trespassing Laws: What You Need to Know

https://www.survivalsullivan.com/washington-trespassing-laws/

Washington: Fast Facts on Trespassing

  • Trespass Law Covers: Buildings, dwellings, structures, land.
  • Crime Class: Misdemeanor.
  • Fencing Required?: No.
  • Signage Required?: Yes, if verbal communication disallowing access not made.
  • Verbal Notice Required?: Yes, for unimproved land if signage is not posted.
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Washington Trespassing Law Overview

Washington trespassing laws are fairly straightforward except for some somewhat lax language and wording that might mean someone could wriggle out of a trespassing charge for certain kinds of property, property like abandoned buildings, vacant land and so on, if no trespassing sign is not conspicuously posted in an obvious place.

Additionally, Washington state furnishes several affirmative defenses against charges of trespassing. They might be necessary, because the charge of criminal trespass in the first degree is a gross misdemeanor; one that will cost you over $1,000 and potentially up to a year in prison.

Aside from this one point of contention, most of the language in the statutes is easy to understand. Let us get into it!

Relevant Washington State Statutes

  • 9A.52.010 Definitions
  • 9A.52.040 Inference of Intent
  • 9A.52.070 Criminal trespass in the first degree
  • 9A.52.080 Criminal trespass in the second degree
  • 9A.52.090 Criminal trespass – Defenses
  • 9A.52.105 Removal of unauthorized persons—Declaration—Liability—Rights

You should never start digging into any legal document, especially laws and state statutes, without looking up definitions.

Inside the definitions accompanying legal language you will probably learn a few things, including some new, slick and sometimes downright weaselly ways you can twist common language to mean other things.

You definitely don’t want to run afoul of this if you only have a cursory understanding of the law. It is a thinking man’s game, so you need to put on your thinking cap and read these definitions below:

9A.52.010 Definitions.

The following definitions apply in this chapter:

(1) “Enter.” The word “enter” when constituting an element or part of a crime, shall include the entrance of the person, or the insertion of any part of his or her body, or any instrument or weapon held in his or her hand and used or intended to be used to threaten or intimidate a person or to detach or remove property.

(2) “Enters or remains unlawfully.” A person “enters or remains unlawfully” in or upon premises when he or she is not then licensed, invited, or otherwise privileged to so enter or remain.

A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of a building which is not open to the public. A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privilege unless notice against trespass is personally communicated to him or her by the owner of the land or some other authorized person, or unless notice is given by posting in a conspicuous manner. Land that is used for commercial aquaculture or for growing an agricultural crop or crops, other than timber, is not unimproved and apparently unused land if a crop or any other sign of cultivation is clearly visible or if notice is given by posting in a conspicuous manner. Similarly, a field fenced in any manner is not unimproved and apparently unused land. A license or privilege to enter or remain on improved and apparently used land that is open to the public at particular times, which is neither fenced nor otherwise enclosed in a manner to exclude intruders, is not a license or privilege to enter or remain on the land at other times if notice of prohibited times of entry is posted in a conspicuous manner.

(3) “Premises” includes any building, dwelling, structure used for commercial aquaculture, or any real property.


Okay, there is a little bit to unpack in this section. Paragraph (2) spells out “unlawful entry” plainly enough; if you are not invited, licensed, authorized or otherwise legally permitted to be on a piece of property or within a building, then you can’t be there, and you are trespassing. Simple.

But read that giant rider on the back end of paragraph (2). Right there in the middle, the underlined and bolded section, is one of the key absolutes to understanding Washington’s legal landscape when it comes to trespassing.

If you were talking about land that is apparently unused and apparently unimproved, meaning there is no man-made structures on it, then a person who is on the land does so with explicit privilege unless the owner has already told them they can’t be on it or there is a sign posted in a conspicuous manner.

What is a “conspicuous manner”? Unfortunately, the statutes do not go on to define what a conspicuous manner is.

There are no guidelines for what kind of sign must be posted, what its dimensions must be where it must be posted along the perimeter of a property or bordering roads and at what intervals it must be posted.

Suffice it to say a classic “no trespassing” sign will probably suffice.

There is another statute that can turn into a real gotcha if you aren’t careful. 9A.52.040 is a short passage but it has a big impact. It states plainly that any person who enters or remains inside (unlawfully) a building may be legally inferred to have acted with intent to do crime against either the property or the person inside:

9A.52.040 Inference of intent.

In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent.


Please also note that this statute applies only to buildings, not to land, even improved land. Nonetheless, if you were asked to leave a place or the owner revokes your right and privilege to be somewhere you previously had it charges against you could escalate rapidly clear past trespassing to, potentially, burglary or something related. Just something to keep in mind.

The actual statute that defines criminal trespass in the first degree, which is the worst one in the state of Washington, is 9A.52.070:

9A.52.070 Criminal trespass in the first degree.

(1) A person is guilty of criminal trespass in the first degree if he or she knowingly enters or remains unlawfully in a building.

(2) Criminal trespass in the first degree is a gross misdemeanor.


Between this passage in this section and the definition section above there is really not too awful much room for interpretation here. Pay close attention to the language in paragraph (1); it says building, not premises. A building is a building, whatever kind of building it is. Premises can also include undeveloped or vacant land.

But also do recall that a gross misdemeanor is a fairly serious crime, one that comes with a substantial $1,000 penalty attached along with about a year in the pokey. Moving swiftly along to the next related statute, 9A.52.080, we can learn about criminal trespass in the second degree, a slightly lesser variety of trespassing:

9A.52.080 Criminal trespass in the second degree.

(1) A person is guilty of criminal trespass in the second degree if he or she knowingly enters or remains unlawfully in or upon premises of another under circumstances not constituting criminal trespass in the first degree.

(2) Criminal trespass in the second degree is a misdemeanor.


Aside from being a misdemeanor, criminal trespass in the second degree only differs from the previous section by applying to premises in general, not just buildings. You could get tagged with criminal trespass in the second degree if you’re screwing around on somebody’s bare land and you shouldn’t be there.

Most states do not have defenses against trespassing. Washington does and those defenses are in section 9A.52.090:

9A.52.090 Criminal trespass—Defenses.

In any prosecution under RCW 9A.52.070 and 9A.52.080, it is a defense that:

(1) A building involved in an offense under RCW 9A.52.070 was abandoned; or

(2) The premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or

(3) The actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him or her to enter or remain; or

(4) The actor was attempting to serve legal process which includes any document required or allowed to be served upon persons or property, by any statute, rule, ordinance, regulation, or court order, excluding delivery by the mails of the United States. This defense applies only if the actor did not enter into a private residence or other building not open to the public and the entry onto the premises was reasonable and necessary for service of the legal process.


So there are not too many good defenses against the charge of trespassing, but three of those listed are potentially valid for us. If a person reasonably, sincerely believes that a building is abandoned that is a defense against the charge of trespassing.

This is not an excuse or license to go entering dilapidated buildings willy-nilly; abandoned and dilapidated are not the same thing, and arguing as much in court as a fast-track to failure.

Obviously, you can defend against a charge of trespassing if you were in a public place that you reasonably, lawfully have a right to be otherwise.

Someone can’t just say you’re trespassing on a whim; if you are told to leave by the owner of a piece of property or one of their authorized agents, then you have to leave. But they can’t just declare you trespassing out of the blue.

Lastly, if you believe that the owner or authorized agent of the owner of a piece of property has granted you access to it that is a defense against a charge of trespassing.

For instance, let’s say you called a classified ad about a piece of bare land and the owner told you to just hop the gate and walk around and take a look when you spoke to them on the phone.

If you are later picked up and potentially charged for trespassing because you had to hop a gate with a no trespassing sign on it, you could hopefully rely on your conversation with the owner to extricate you from the charges.

Lastly, we come to section 9A.52.105 which details what is required to have a person removed from a piece of property for trespassing, the liability this entails (potentially) for the owner and what duties and responsibilities law enforcement officers have during and after the trespassing of an individual:

9A.52.105 Removal of unauthorized persons—Declaration—Liability—Rights.

(1) Subject to subsections (2) and (3) of this section and upon the receipt of a declaration signed under penalty of perjury, in the form prescribed in RCW 9A.52.115, declaring the truth of all of the required elements set forth in subsection (4) of this section, a peace officer shall have the authority to:

(a) Remove the person or persons from the premises, with or without arresting the person or persons; and

(b) Order the person or persons to remain off the premises or be subject to arrest for criminal trespass.

(2) Only a peace officer having probable cause to believe that a person is guilty of criminal trespass under RCW 9A.52.070 for knowingly entering or remaining unlawfully in a building considered residential real property, as defined in RCW 61.24.005, has the authority and discretion to make an arrest or exclude anyone under penalty of criminal trespass.

(4) The declaration must include the following elements:

(a) That the declarant is the owner of the premises or the authorized agent of the owner of the premises;

(b) That an unauthorized person or persons have entered and are remaining unlawfully on the premises;

(c) That the person or persons were not authorized to enter or remain;

(d) That the person or persons are not a tenant or tenants and have not been a tenant or tenants, or a homeowner or homeowners who have been on title, within the last twelve months on the property;

(e) That the declarant has demanded that the unauthorized person or persons vacate the premises but they have not done so;

(f) That the premises were not abandoned at the time the unauthorized person or persons entered;

(g) That the premises were not open to members of the public at the time the unauthorized person or persons entered;


So reading all of that we can see a few interesting things. People who are tenants or were tenants of a dwelling in the past 12 months of a building have certain rights that may prevent them from being declared trespassed.

Additionally, paragraph (4) subsections (a) through (g) detail additional elements that may interfere with the declaration of a trespass. Just a few things you should probably be aware of if you are a property owner in Washington.

Conclusion

Washington trespassing laws are pretty straightforward and easy to understand for the most part, not including some weakly worded passages on posting signage, or otherwise delivering notice to someone that no trespassing is allowed on a given piece of property.

Aside from that, trespassing in Washington is only ever a misdemeanor, even though criminal trespass in the first degree will score you a gross misdemeanor penalty which carries a substantial fine and a lengthy stint in jail.

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