What’s the Difference between Trespassing & Breaking and Entering?

“Trespassing” and “breaking and entering” are often used interchangeably. Virginia law, however, sees a world of difference between the two.

In everyday speech, “trespassing” and “breaking and entering” are often used interchangeably. Virginia law, however, sees a world of difference between the two. For example, trespassing is a misdemeanor, but breaking and entering is a felony that can land you in prison for years.

In this article, we’ll go over the important differences between trespassing and breaking and entering. We’ll also talk about the various penalties the court can assign for each crime.


As a starting point, in Virginia trespass can be a civil or criminal matter, and sometimes qualifies as both.

Civil Trespass

Common law protects a landowner from unauthorized entries onto their land. If someone interferes with your usage of your own land, they are trespassing. In this definition it’s also possible to trespass accidentally. For example, a car crashing onto a property can count as civil trespass.

Further, an owner or a renter has the right to exclude others from their property. To enforce their right to use and enjoy their property, an owner or renter would have to bring a civil case against the person entering their property.

However, not all trespasses are heard in the criminal justice system. Sometimes, as in the car accident example, it remains a civil matter.

Criminal Trespass

The main law governing criminal trespassing in Virginia is VA Code § 18.2-119. In essence, this law makes it illegal to remain on a property after the owner has forbidden you to do so. This includes signs marking the property as private, provided that those signs are clear and visible.

Trespassing is normally a class 1 misdemeanor. If charged, you could face a fine of up to $2,500 and one year in jail.

As the wording of this statute implies, trespassing only becomes a crime if you remain on a property after the owner directs you to leave. In most cases, an individual who wanders onto unmarked private property without criminal intent is not guilty of criminal trespassing. However, they can still be sued for civil trespass.

For that reason, Virginia trespassing cases tend to focus heavily on the issue of whether or not the property owner forbade the accused from entering it beforehand.

Note that trespassing is only a misdemeanor if you are unarmed and without criminal intent. If the police find evidence of criminal intent, you may instead face much more serious breaking and entering charges.

There are many ways to commit criminal trespass in Virginia, including: trespass by computer, trespass with a spotlight, trespass with livestock, dogs, trespass at a cemetery at night, and trespass on many other locations, including churches, schools, and a public utility. You can even commit criminal trespass on a person’s vehicle or boat. The penalties of each of these forms of trespass can vary.

Disorderly Trespass

Sometimes, a person enters into a property in a way that seems likely to harm another or breach the peace. Lawyers usually refer to this as “disorderly trespass” or “common law trespass.”

Like regular criminal trespassing, disorderly trespass is a class 1 misdemeanor. However, a prosecutor can convict you of disorderly trespass even if you haven’t been expressly forbidden from entering a property.

Ultimately, it’s up to the judge in your case to decide whether an act counts as “disorderly” or not. The Taylor v. Commonwealth decision for example defined a breach of the peace as “an act of violence or an act likely to produce violence.”

Additional Charges

Virginia courts often pair trespassing with other, related charges. Here are three of the most common:

  • Trespassing with the intent to damage property is a class 1 misdemeanor. Actually damaging that property can be either a class 1 misdemeanor or a class 6 felony, depending on the value of the property.
  • Hunting or fishing on another individual’s property is a class 3 misdemeanor punishable by a fine of up to $500.
  • Intentionally selecting a property to trespass upon based on the owner’s race, ethnicity, color, or religion is a class 6 felony punishable by up to five years of prison time.

Breaking and Entering

In Virginia, “breaking and entering” typically refers to the act of entering another person’s property with the intent of committing a crime. It also includes cases where a person conceals themselves in a home for the purpose of committing a crime. Although these acts can fall under a number of different statutes, all refer to felonies punishable by significant prison sentences.

Note that “breaking” refers to any amount of force used to enter a dwelling. Virginia defines “force” very broadly and people sometimes use force without realizing it. For example, Virginia courts have even defined the act of pushing on an unlocked door as a use of force.

Breaking and entering itself can be further divided into two categories for felony and misdemeanor charges.

Felony Breaking and Entering

The first and most severe type of breaking and entering is called “felony breaking and entering.” This includes burglary, which is breaking into a dwelling or vehicle used as a dwelling with the intent to commit a crime. It can also include entering a bank, armed with a deadly weapon, with the intent to commit a theft.

Committing an act of felony breaking and entering while unarmed is a class 3 felony. This means that it is punishable by up to twenty years in prison and a fine of up to $100,000. However, Breaking and Entering while armed is a class 2 felony, which increases the punishable time to a minimum of 20 years and a maximum of life.

Furthermore, this is separate crime in addition to the charges from the original intended felony.

Breaking and Entering for the Purpose of Committing a Misdemeanor

Unlawfully entering a dwelling with the intent to commit a misdemeanor is also a serious charge. Normally, doing so is a class 6 felony punishable by one to five years in prison.

If you are armed during this entry however, the charge instead becomes a class 2 felony. Like armed burglary, this could result in a jail term of anywhere between 20 years and life in prison.


As you can see, the difference between trespassing and breaking and entering isn’t always obvious. For that reason, it’s important to contact a lawyer as soon as the state charges you with either crime.

By hiring a lawyer who understands the intricacies of Virginia law, you’ll increase your chances winning your case, or reducing the charges and a arriving at a more favorable outcome in court.

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