Continuing vs Permanent Trespass

Continuing vs Permanent Trespass

The statute of limitations for trespass is three years.  However, the time the statute of limitations begins to run depends on whether the trespass is a continuing or permanent trespass.  The statute of limitations for a permanent trespass begins to run when the trespass is created.  On the other hand, the statute of limitations for a continuing trespass begins anew with each injury.
A trespass is permanent when the damages are recoverable in one action.  Examples of a permanent trespass include encroachment of buildings, walls, foundations, pipes, and vents erected on another person’s property.  Since the damage resulting from these types of encroachments don’t change over time, they are considered permanent.  Accordingly, the statute of limitations begins to run when such encroachments are created, such as when the buildings or foundations are constructed.  Therefore, in order for the party to timely bring an action against the encroaching party, he must bring the action within three years from the time the permanent encroachment was constructed.
A trespass is continuing when the damages are temporary in nature, may vary over time, and repeatedly disturb the property.  Unlike a permanent trespass, one important characteristic of a continuing trespass is that the trespass may be discontinued or abated.  Examples of a continuing trespass include the operation of an airport, contamination to soil and groundwater caused by leakage, and seepage of water from an irrigation ditch.   Since the continuing trespass is essentially a series of successive injuries, the statute of limitations will keep restarting as each injury occurs.  Therefore, until the trespass discontinues, the statute of limitations will not expire.  In fact, the statute of limitations will expire only when it has been three years after the last act of the trespass.
At Schorr Law, we are experienced in handling property line disputes and providing counsel on matters involving real property sales, purchases, and leases. To see if you qualify for a free 30-minute consultation regarding your dispute, please contact us by phone, email, or send us a message through our contact form.
By: Carina Woo, esq.
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