Trespass Charges in Massachusetts Under G.L. c. 266, § 120

A person who returns to a home, a store, a campus, a shelter, or an apartment building after being told to stay away can face a trespass charge under G.L. c. 266, § 120. A person who refuses to leave property when the owner or manager orders the person to leave can face the same charge. Homeowners, stores, colleges, shelters, and housing authorities can put the instruction to stay away in a written no trespass notice, which many people call a no trespass order or a trespass warning.

The police either arrest the person at the property or apply for a criminal complaint. A person who is not arrested ordinarily receives a clerk-magistrate hearing before any complaint issues. Trespass is a misdemeanor. A judge can sentence a person convicted of trespass to a fine of up to $100, up to thirty days in jail, or both.

This page explains what the Commonwealth must prove, how a person in control of property forbids entry, the defenses to a trespass charge, and how trespass cases begin and end. The page also explains how a person who is being harassed, or who is afraid of someone, can use a no trespass notice to bar the other person from a home or business, and when the harassed person should apply for a 209A restraining order or a 258E harassment prevention order.

Attorney Joe Serpa represents people accused of trespass at clerk-magistrate hearings, and people charged with trespass in the District Court and the Boston Municipal Court. Serpa Law Office also represents people who need protection from someone who keeps coming to their home or workplace.

What the Commonwealth Must Prove in a Trespass Case

The Commonwealth must prove two elements beyond a reasonable doubt. The first element is that the defendant, without a legal right to be there, entered or remained in a dwelling house, a building, a boat, or improved or enclosed land belonging to someone else. The second element is that the person in lawful control of the property forbade the defendant to enter or to remain, either directly or by a posted notice. Instruction 8.220, Criminal Model Jury Instructions for Use in the District Court (March 2017). The statute also covers a wharf, a pier, and a school bus. G.L. c. 266, § 120.

A person commits trespass by entering property after being forbidden to enter, or by staying on property after the person in control orders the person to leave. Commonwealth v. Richardson, 313 Mass. 632, 637 (1943). In Commonwealth v. Strahan, 30 Mass. App. Ct. 947, 948 (1991), the Appeals Court upheld a trespass conviction where a person in control of the premises ordered the defendant to leave, the defendant refused, and the defendant stayed for five to ten minutes.

A porch, an external deck, and the steps up to a front door are part of the building under the trespass statute. Commonwealth v. Wolf, 34 Mass. App. Ct. 949, 949 (1993). The statute applies to state and municipal property as well as private property. Commonwealth v. Egleson, 355 Mass. 259, 262 (1969).

A person who enters or stays on property in violation of certain court orders also commits trespass. The statute covers an order to vacate the marital home issued in a divorce or separate support case under G.L. c. 208, § 34B, and a 209A restraining order issued under G.L. c. 209A, § 3 or § 4. Evidence that a court notified the person of the order is enough to establish the notice element unless other evidence contradicts the court’s notice. G.L. c. 266, § 120.

No Trespass Notices, Posted Signs, and Locked Gates

The person in lawful control of the property must forbid the entry. The person in control is usually the owner, a tenant in the tenant’s own apartment, or a manager acting for a business, a school, a shelter, or a housing authority. The person in control can forbid entry in person, in a written no trespass notice, or by a sign posted on the property. G.L. c. 266, § 120.

A posted sign must be reasonably distinct and placed in a reasonably suitable spot, so that a reasonably careful person entering the property would see the sign. The Commonwealth does not have to prove that the defendant saw the sign. Instruction 8.220. A posted sign does not need a signature. Fitzgerald v. Lewis, 164 Mass. 495, 500 (1895). The person in control of property without a sign can also forbid entry by securing the property with fences, walls, locked gates, or locked doors. Commonwealth v. A Juvenile (No. 1), 6 Mass. App. Ct. 106, 108 (1978).

A store can bar a person accused of shoplifting from returning by giving the person a written no trespass notice. Colleges and universities can give the same kind of notice for campus property. A student who receives a campus no trespass notice may also face a school disciplinary case. Homeless shelters, hospitals, and housing authorities can give a notice for the property each one controls. A person who returns after receiving a notice can face a trespass charge, even if the person does nothing else unlawful on the property.

Defenses to a Trespass Charge

The Commonwealth’s Evidence of Notice and Lawful Control

The Commonwealth must prove that the person who forbade the entry had lawful control of the property and that the defendant received the notice. In Commonwealth v. Greene, 461 Mass. 1011, 1011-1012 (2012), the Supreme Judicial Court reversed the defendant’s trespass convictions because the only evidence that the person who excluded the defendant controlled the property was a police officer’s account of a telephone call. The Commonwealth never offered the no trespass order itself in evidence. The Commonwealth’s evidence also did not show who obtained the order, what the order said, or whether anyone served the order on the defendant.

The Commonwealth must also prove that the exclusion applied on the date of the alleged trespass. In Commonwealth v. Rotger, 92 Mass. App. Ct. 1111 (2017), an unpublished decision, the Appeals Court reversed a trespass conviction where the Commonwealth relied on a police officer’s account of what shelter staff had said and offered no evidence of how long the shelter’s exclusion of the defendant lasted. The shelter’s policy allowed excluded people inside on freezing days. The temperature was below freezing on the day of the arrest.

Tenants, Occupants, and Invited Guests

The trespass statute does not apply to a tenant or occupant who moved into a residence rightfully and stays after the tenancy or occupancy ends or is said to have ended. The owner or landlord can recover the residence only through a civil court case. G.L. c. 266, § 120. A landlord therefore cannot use a no trespass notice to remove a tenant.

A tenant can invite guests to the tenant’s apartment. The guests can pass through the hallways and other common areas to get to the apartment, even over the landlord’s objection. Commonwealth v. Richardson, 313 Mass. 632, 639-641 (1943). In Commonwealth v. Nelson, 74 Mass. App. Ct. 629, 633 (2009), the Appeals Court applied the Richardson rule to public housing owned by the Boston Housing Authority. The housing authority had given the defendant a written trespass notice barring the defendant from its property. A tenant later invited the defendant to the tenant’s apartment. The police then found the defendant in the hallway of the tenant’s building. The Appeals Court reversed the trespass conviction and held that a guest who passes through the common areas at a tenant’s invitation does not commit trespass, as long as the guest is passing through rather than lingering or loitering. The housing authority keeps lawful control of the common areas for every other purpose. Id. at 634.

A visitor with a legitimate purpose, such as knocking on the door to speak with someone inside, can enter another person’s property to learn whether the person in control will speak with the visitor. The visitor must then leave if the answer is no. The visitor commits trespass by staying after the person in control asks the visitor to leave. Commonwealth v. Hood, 389 Mass. 581, 589-590 (1983).

Leaving When Asked

A charge based on remaining on property requires the Commonwealth to prove that the defendant failed to leave after the person in control asked the defendant to leave. Instruction 8.220. A person who leaves promptly when asked has a defense to a charge based on remaining. A person who returns after an earlier no trespass notice, however, commits trespass by entering, even if the person leaves when asked.

The Necessity Defense

A person who entered property to escape a clear and imminent danger can ask the jury to consider the defense of necessity. The defendant must offer some evidence of four things. The first is a clear and imminent danger. The second is a reasonable expectation that entering the property would directly reduce the danger. The third is the absence of any effective legal alternative. The fourth is that the Legislature has made no clear choice ruling out the defense. Commonwealth v. Magadini, 474 Mass. 593, 600 (2016). The Commonwealth must then prove beyond a reasonable doubt that necessity did not justify the entry. Id.

In Magadini, a jury convicted a homeless man of trespass for taking shelter in the lobbies and hallways of downtown buildings during cold weather, after the local homeless shelter had denied him entry and he had been unable to rent an apartment. The Supreme Judicial Court held that the trial judge should have instructed the jury on necessity for six trespass charges from February through April 2014, set aside those six convictions, and ordered a new trial. The Supreme Judicial Court upheld a seventh conviction from June 2014, when the evidence showed only that the man needed to use a bathroom. 474 Mass. at 600-602.

In Commonwealth v. Hood, 389 Mass. 581, 592-595 (1983), the Supreme Judicial Court held that protesters who entered the property of a laboratory doing defense work, to hand out literature against the nuclear arms race, could not claim necessity. Handing out literature could not directly reduce the danger the protesters opposed. The protesters also had lawful ways to make their case.

How a Trespass Case Begins

A police officer, sheriff, deputy sheriff, or constable who finds a person committing trespass can arrest the person without a warrant. The statute allows the officer to hold the person for up to twenty-four hours, not counting Sunday, until the officer can make a complaint and the court issues a warrant on the complaint. G.L. c. 266, § 120. A person arrested for trespass then faces arraignment in the District Court or the Boston Municipal Court.

The police can also apply for a criminal complaint instead of arresting the person. A property owner can file an application as well. A person who is not under arrest for a misdemeanor such as trespass ordinarily receives notice and a hearing before a clerk-magistrate before the court issues a complaint. G.L. c. 218, § 35A. The clerk-magistrate can deny the application. A denial prevents a complaint, an arraignment, and a Criminal Offender Record Information (CORI) entry from that application.

A trespass complaint can include other charges from the same incident, such as disorderly conduct, a violation of a 209A restraining order, or breaking and entering. The page on criminal charges between roommates explains the charges that commonly arise between people who share an apartment or a dorm room.

Penalties and Case Outcomes

A judge can sentence a person convicted of trespass to a fine of up to $100, up to thirty days in jail, or both. The statute sets no minimum sentence. G.L. c. 266, § 120.

A trespass case can end without a conviction. The district attorney’s office can enter a nolle prosequi, which ends the prosecution of the charge. A judge can dismiss the case, continue the case without a finding under G.L. c. 278, § 18, or place the defendant on pretrial probation. A judge or jury can find the defendant not guilty. The site’s pages on how Massachusetts criminal cases get dismissed and on continuances without a finding and pretrial probation explain dismissals, continuances without a finding, and pretrial probation.

A judge can also treat a trespass charge as a civil infraction under G.L. c. 277, § 70C. The defendant or the Commonwealth can make an oral motion at arraignment or at the pretrial conference asking the judge to treat the charge as a civil infraction. The judge can act on the judge’s own motion at any time. The judge cannot treat the charge as a civil infraction if the Commonwealth objects in writing and states its reasons. A judge who finds the person responsible for the civil infraction cannot sentence the person to jail. The judge can impose a fine of up to $5,000, because the trespass statute sets no civil fine. The $5,000 civil limit is higher than the $100 limit on the criminal fine. The court does not appoint a lawyer for a person whose case proceeds as a civil infraction, and the court revokes any appointment already made. G.L. c. 277, § 70C.

A property owner can sue a trespasser in a civil action. A judge can therefore discharge a defendant from a trespass complaint through accord and satisfaction under G.L. c. 276, § 55. The property owner, or another person injured by the trespass, must appear in court and acknowledge in writing that the injured person has received satisfaction for the injury, such as payment for any damage. The judge has discretion to discharge the defendant from the complaint after the defendant pays any expenses the judge orders. The statute excludes a trespass that violates a 209A restraining order or one of the other protective orders the statute lists, an offense that would otherwise be abuse under G.L. c. 209A, § 1, an offense committed by or against a sheriff or another officer of justice, an offense committed as part of a riot, and an offense committed with intent to commit a felony.

A person convicted of trespass can ask the Commissioner of Probation to seal the record under G.L. c. 276, § 100A once three years have passed since the case ended, if the person has no new conviction during those three years. A person whose trespass case was dismissed can ask a judge to seal the record at any time under G.L. c. 276, § 100C. The site’s page on sealing a Massachusetts criminal record explains both procedures.

Immigration Consequences

Federal immigration law imposes its own consequences on a trespass conviction or a continuance without a finding. A noncitizen charged with trespass should have an immigration lawyer review any proposed plea or admission before accepting it. An immigration officer can also ask about a trespass arrest, or about the conduct described in the police report, even when the case ended without a conviction. The immigration lawyer should review the exact question, the person’s immigration status, and the court record before the person files a petition or attends an interview.

How a Person Who Is Harassed or Afraid Can Give a No Trespass Notice

A homeowner, a tenant, or a business owner who is being harassed by someone, or who is afraid of someone, can bar that person from the property with a written no trespass notice. A no trespass notice is not a court order. The person who controls the property writes the notice and arranges its delivery without going to court.

Who Can Give the Notice

The person in lawful control of the property gives the notice. A homeowner controls the home, the yard, the driveway, the porch, and the front steps. A tenant controls the tenant’s own apartment. The landlord or property manager controls the hallways, the parking lot, and the other common areas of an apartment building. A tenant who wants a person barred from the whole building should therefore ask the landlord or property manager to give a notice for the common areas. An employee who wants a person barred from the workplace should ask the employer, who controls the workplace, to give the notice.

What the Notice Should Say

The notice should contain the following information.

• The full name of the person being barred, with a physical description or a date of birth if the name alone could fit someone else
• The street address of the property and the areas the notice covers, such as the house, yard, driveway, porch, steps, and garage, or a business and its parking lot
• A plain statement that the person is forbidden to enter or remain on the property at any time
• A statement that entering or remaining on the property after receiving the notice is a trespass under G.L. c. 266, § 120
• A statement that the notice remains in effect until the person in control withdraws the notice in writing
• The name, signature, and relationship to the property of the person in control, such as owner, tenant, or manager, and the date

The statement that the notice remains in effect until withdrawn helps the Commonwealth prove that the exclusion applied on the date of any later trespass. The notice should leave out threats, insults, demands, and any request for a response. A threat or an insult in the notice gives the barred person evidence to use against the sender, including in the barred person’s own application for a harassment prevention order.

How to Deliver the Notice

The Commonwealth must later prove that the barred person received the notice. The person in control should therefore deliver the notice in a way that creates a record of the delivery.

• A constable or a deputy sheriff can deliver the notice in hand and then sign a return describing the delivery.
• Some police departments deliver no trespass notices at the request of the person in control. The officer’s report then records the delivery.
• The person in control can send the notice by certified mail, return receipt requested, with a second copy by first-class mail. The signed return receipt records the delivery when the barred person accepts the letter.

A person who is afraid of the barred person should use a constable, a deputy sheriff, a police officer, or the mail instead of delivering the notice personally. The person in control should keep the original notice, the record of delivery, and a written log of every later visit, with the date, the time, and the name of any witness. The person in control should also give a copy of the notice and the record of delivery to the local police department, so that an officer who answers a later call can confirm the notice.

The person in control can post No Trespassing signs at the entrances to the property as well. A posted sign is notice to everyone who comes onto the property. A written notice names the barred person and creates a record that the barred person received the notice.

How a No Trespass Notice Is Legally Effective

Each entry onto the property after the barred person receives the notice is a trespass. A police officer who finds the barred person on the property can arrest the barred person without a warrant. G.L. c. 266, § 120. The person in control can also report a later visit to the police, or apply to the clerk-magistrate for a criminal complaint.

The person in control should expect to testify about the notice, the delivery of the notice, and the control of the property. The Commonwealth cannot prove the notice, the delivery, or the control of the property through a police officer’s account of what someone else told the officer. Commonwealth v. Greene, 461 Mass. 1011, 1011-1012 (2012).

The notice covers only property under the control of the person who gave the notice. The notice does not stop the barred person from calling, texting, or messaging the person in control, or from approaching the person in control on a public sidewalk or street. A no trespass notice cannot remove a person who lives in the home either, because the trespass statute excludes a tenant or occupant who moved in rightfully. G.L. c. 266, § 120.

209A Restraining Orders and 258E Harassment Prevention Orders

A judge can order a person to stay away from the plaintiff’s home and workplace and to have no contact with the plaintiff by any means. A person suffering abuse from a family or household member can apply for a 209A restraining order. Family or household members include current and former spouses, people who live or have lived in the same household, people related by blood or marriage, people who have a child in common, and people who are or were in a substantive dating or engagement relationship. G.L. c. 209A, § 1. People who share a household include roommates. A 209A restraining order can also order the defendant to leave a shared home immediately and stay away from the home. G.L. c. 209A, § 3(c).

A person being harassed by someone outside the family or household, such as a neighbor, a coworker, or a former friend, can apply for a 258E harassment prevention order, which many people call a harassment restraining order. Harassment under G.L. c. 258E, § 1 means three or more acts of willful and malicious conduct aimed at the plaintiff, committed with the intent to cause fear, intimidation, abuse, or damage to property, that in fact cause fear, intimidation, abuse, or damage to property. Harassment also includes certain single acts, including the crimes specified in G.L. c. 258E, § 1. A 258E harassment prevention order can order the defendant to stay away from the plaintiff’s household and workplace and to have no contact with the plaintiff. G.L. c. 258E, § 3.

Repeated visits after a no trespass notice can be evidence in an application for a 258E harassment prevention order. The notice, the record of delivery, and the log of visits show when each visit happened and that the barred person had been told to stay away. Repeated targeted conduct can also be the basis of a criminal harassment complaint under G.L. c. 265, § 43A.

A person who violates a 209A restraining order or a 258E harassment prevention order commits a crime. A judge can sentence a person convicted of violating either order to up to two and one-half years in the house of correction, a fine of up to $5,000, or both. G.L. c. 209A, § 7. G.L. c. 258E, § 9. Entering a home in violation of a 209A restraining order that orders the defendant to stay away is also a trespass. G.L. c. 266, § 120. The site’s pages on violating a 209A restraining order and violating a 258E harassment prevention order explain the violation charges.

Serpa Law Office represents plaintiffs who apply for 209A restraining orders and 258E harassment prevention orders, and defendants who oppose them. Attorney Serpa also advises people on drafting and delivering a no trespass notice.

Frequently Asked Questions

Related Serpa Law Office Resources

• Massachusetts Clerk-Magistrate Hearing Lawyer
• How to Get a 258E Harassment Restraining Order in Massachusetts
• How to Get a 209A Restraining Order in Massachusetts
• Massachusetts 258E Harassment Restraining Orders (Harassment Prevention Orders)
• Massachusetts 209A Restraining Orders (Abuse Prevention Orders)
• Roommate Restraining Orders in Massachusetts: College Dorms and Student Apartments
• Criminal Charges Between Roommates in Massachusetts: Dorms, Apartments and Clerk-Magistrate Hearings
• Breaking and Entering in Massachusetts (M.G.L. c. 266, §§ 14 through 18A)
• Massachusetts Shoplifting and Larceny Defense Lawyer
• Massachusetts Criminal Harassment Defense (M.G.L. c. 265, § 43A)
• Sealing and Expunging a Massachusetts Criminal Record
• Massachusetts Criminal Charges Defense