Is a County Worker Guilty of Trespass for Entering a Hole in My Fence?

Full question:

If I have a fence up and there is an 8 foot opening in it, does that give a county worker the right to trespass?

• Category: Real Property
• Subcategory: Easements
• Date: 04/07/2025
• State: Maryland

Answer:

A hole in a fence is not an invitation to trespass. However, a county worker may have an easement to access the property. For example, a utility company often has an easement of egress and ingress (entering and exiting) property in order to maintain power lines, sewer lines, etc.

An easement is a property interest, which entitles the owner of the easement to the privilege of a specific and limited use of the land of another. The easement is a real property interest, but separate from the legal title of the owner of the underlying land. The land which receives the benefit of the easement is called the "dominant" property or estate. Easements should describe the extent of the use, as well as the easement location and boundaries. The location, maintenance, and uses of the easement are defined by the agreement, use, or instrument creating the easement. Easements can be created by a deed to be recorded just like any real property interest, by continuous and open use by the non-owner against the rights of the property owner for a statutory number of years, or to do equity (fairness), including giving access to a "land-locked" piece of property. Title reports and title abstracts will usually describe all existing easements upon a parcel of real property. Once an easement is created, the owner of the easement has the right and the duty to maintain the easement for its purpose unless otherwise agreed between the owner of the easement and the owner of the underlying property. The owner of the easement can make repairs and improvements to the easement, provided that those repairs or improvements do not interfere in the use and enjoyment of the easement by the owner of the property through which the easement exists. Easements may be renegotiated under contract law principles, and may be terminated by abandonment when the easement holder intends to abandon an easement and takes actions which manifest that intent. Two types of easements include easements in gross and appurtenant easements. Easements in gross or personal easements are personal rights given to individuals or specific groups. Once the easement owner dies, the easement terminates. Appurtenant easements are more permanent and are given to both the property and its owner. If the property owner with an easement sells the property, the new buyer gains the easement rights that belong with the property. To be a legal appurtenant easement, the properties involved must be adjacent to each other and must be owned by separate entities.

An easement can be created by an express grant, by implication, by strict necessity, by permission, and by prescription. An express easement is created by a deed or by a will and therefore, must be in writing. An express easement can also be created when the owner of a certain piece of property conveys the land to another but saves or reserves an easement in it (easement by reservation). An easement by implication can be created if it is at least reasonably necessary to the enjoyment of the original piece of property, the land is divided, so that the owner of a parcel is either selling part and retaining part, or subdividing the property and selling pieces to different new owners, and the use for which the implied easement is claimed existed prior to the severance or sale. The courts will find an easement by necessity if two parcels are so situated that an easement over one is strictly necessary to the enjoyment of the other. The creation of this sort of easement requires that at one time, both parcels of land were either joined as one or were owned by the same owner. A permissive easement is simply an allowance to use the land of another. It is essentially a license, which is fully revocable at any time by the property owner. In order to be completely certain that a permissive easement will not morph into a prescriptive easement, some landowners erect signs stating the grant of the permissive easement or license. Most litigated easements are those created without permission. An easement by prescription is one that is gained under principles of adverse possession. Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. If a person uses another's land for more than the statute of limitations period prescribed by state law, that person may be able to derive an easement by prescription. The use of the land must be open, notorious, hostile, and continuous for a specified number of years as required by law in each state. The time period for obtaining an easement by adverse possession does not begin to run until the one seeking adverse possession actually trespasses on the land. The use of the easement must truly be adverse to the rights of the landowner of the property through which the easement is sought and must be without the landowner's permission. If the use is with permission, it is not adverse. There must be a demonstration of continuous and uninterrupted use throughout the statute of limitations period prescribed by state law.

Please see the following MD statutes to determine applicability:

§ 6-402 CRIM. LAW Trespassing on posted property prohibited; penalties.

(a) Prohibited. — A person may not enter or trespass on property
that is posted conspicuously against trespass by:

(1) signs placed where they reasonably may be seen; or

(2) paint marks that:

(i) conform with regulations that the Department of Natural Resources
adopts under § 5-209 of the Natural Resources Article; and

(ii) are made on trees or posts that are located:

1. at each road entrance to the property; and

2. adjacent to public roadways, public waterways, and other land
adjoining the property.

(b) Penalty. — A person who violates this section is guilty of a
misdemeanor and on conviction is subject to imprisonment not exceeding 90
days or a fine not exceeding $500 or both.

§ 6-408 CRIM. LAW Entering property to invade privacy prohibited;
penalty.

(a) Prohibited. — A person may not enter on the property of another for
the purpose of invading the privacy of an occupant of a building or
enclosure located on the property by looking into a window, door, or
other opening.

(b) Penalty. — A person who violates this section is guilty of a
misdemeanor and on conviction is subject to imprisonment not exceeding 90
days or a fine not exceeding $500 or both.

§ 6-403 CRIM. LAW Wanton trespass, remaining on private property,
boat, or marine vessel prohibited; penalty; construction.

(a) Prohibited — Entering and crossing property. —
A person may not enter or cross over private property or
board the boat or other marine vessel of another, after
having been notified by the owner or the owner's agent not to
do so, unless entering or crossing under a good faith claim
of right or ownership.

(b) Some — Remaining on property. — A
person may not remain on private property including the boat
or other marine vessel of another, after having been notified
by the owner or the owner's agent not to do so.

(c) Penalty. — A person who violates this
section is guilty of a misdemeanor and on conviction is
subject to imprisonment not exceeding 90 days or a fine not
exceeding $500 or both.

(d) Construction of section. — This
section prohibits only wanton entry on private property.

(e) Applicability to housing projects. — This
section also applies to property that is used as a housing project
and operated by a housing authority or State public body, as
those terms are defined in Division II of the Housing and
Community Development Article, if an authorized agent of the
housing authority or State public body gives the required
notice specified in subsection (a) or (b) of this section.