Defense to Trespass in Virginia – bona fide claim of right plus evidence that your claim of right amounted to, at minimum, a facially valid authorization
0July 7, 2025 by Tom Roberts, Esq.
Summary: A bona fide claim of right, even if mistaken is a defense to a criminal trespass charge in Virginia, provided you have some evidence of a facially valid authorization.
Trespass Charge is Serious!
Virginia Trespass Charge is a Class 1 Misdemeanor – that if convicted requires DNA sample
Explanation of “Bona Fide Claim of Right” which negates criminal intent and is therefore a defense to criminal trespass charge in Virginia.
Code § 18.2-119 makes it a criminal offense for “any person without authority of law” to “remain[] upon the lands, buildings or premises of another . . . after having been forbidden to do so.” However, “one cannot be convicted of trespass when one enters or stays upon the land under a bona fide claim of right.” Reed v. Commonwealth, 6 Va. App. 65, 71 (1988) (citing Wise v. Commonwealth, 98 Va. 837 (1900)); see also Commonwealth v. Hicks, 267 Va. 573, 583 (2004) (citing Reed and noting that Code § 18.2-119 requires proof of criminal intent). “[A] bona fide claim of right is a sincere, although perhaps mistaken, good-faith belief that one has some legal right to be on the property.” Id. “The claim need not be one of title or ownership, but it must rise to the level of authorization.” Id. Thus, a good faith defense requires more than abstract good faith; it requires a good-faith belief, supported by objective facts that, if true, rise to the level of being an authorization to enter or remain on the premises.
“Bona Fide Claim of Right” + Evidence of Objected Fact giving rise to the level of “being an authorization to enter or remain on the premises”
The Virginia Supreme Court on June 5, 2025 in Commonwealth v. Kartozia explained more is needed than simply an abstract belief that you had a right to be on the property. The court stated, “[A] bona fide claim of right is a sincere, although perhaps mistaken, good-faith belief that one has some legal right to be on the property.” Id. “The claim need not be one of title or ownership, but it must rise to the level of authorization.” Id. Thus, a good faith defense requires more than abstract good faith; it requires a good-faith belief, supported by objective facts that, if true, rise to the level of being an authorization to enter or remain on the premises. Commonwealth v Kartozia
Disclaimer
The materials are prepared for information purposes only. The materials are not legal advice. You should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.
Thomas H. Roberts & Associates, P.C.
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Richmond, Virginia 23219
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Category Criminal Law, False Imprisonment, Fourth Amendment, General | Tags: claim of right, consult a criminal defense lawyer in virginia, criminal defense for trespass, criminal defense to trespass in virginia, defense to trespass in va, defense to trespass in virginia, virginia trespass
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