Trespass & Destruction of Property

Va. Code §§ 18.2-119, 18.2-121 and 18.2-137 — notice, purpose, and value

Class 3 misdemeanor to Class 6 felony
Primary statute: § 18.2-119
Last verified: 2026-08-09

1. Trespass — § 18.2-119 Turns on Notice

The offence is going upon or REMAINING upon the lands, buildings or premises of another "without authority of law ... AFTER HAVING BEEN FORBIDDEN to do so." Presence alone is not the offence — the notice is.

How the forbidding can be given

ORALLY or IN WRITING, by the owner, lessee, custodian, or their agent, or another person lawfully in charge
By a SIGN or signs posted by or at the direction of those persons or their agent
By the holder of an easement or right-of-way authorised by the instrument creating it to post such signs

Signs must be at a place or places "where it or they may be reasonably seen". § 18.2-119.1 separately addresses the validity of signs forbidding trespass.

Offence	Class
Trespass after being forbidden — § 18.2-119	Class 1 misdemeanor

The section expressly does not affect §§ 18.2-132 through 18.2-136 (hunting-related entry provisions).

2. WILLFULNESS and the Claim-of-Right Defence

Willfulness and claim of right

O'Banion v. Commonwealth Record No. 2698-97-4 (Va. Ct. App. July 25, 2000) (en banc), Court of Appeals of Virginia, en banc (published), 2000

binding

"Although Code § 18.2-119 is silent as to intent, the case law in Virginia has uniformly construed the statutory offense of criminal trespass to require a willful trespass. As such, one who enters or stays upon another's land under a bona fide claim of right cannot be convicted of trespass." To refuse an instruction on that principle, where there is evidence to support it, is error.

⚠️ Cited by record number — its reporter citation could not be confirmed in a primary source, and FindLaw has both the NAME ("Banion") and the DATE (19 Oct 1999) wrong.

Reed v. Commonwealth 6 Va. App. 65, 70-71, 366 S.E.2d 274, 278 (1988), Court of Appeals of Virginia, 1988

binding

"[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. The claim need not be one of title or ownership, but it must RISE TO THE LEVEL OF AUTHORIZATION."

The two-sided test. Sincerity is enough as to belief — the belief may be mistaken — but the asserted right must amount to authorization, not mere preference or grievance.

Wise v. Commonwealth 98 Va. 837, 837, 36 S.E. 479, 479 (1900), Supreme Court of Virginia, 1900

binding

A defendant who acted "under a claim of right, believing it to be his own, and believing that he had a bona fide right thereto" must be acquitted; that instruction "propounds the law correctly, and should have been given". Reversed because evidence bearing on "the bona fides of a claim of right" had been excluded.

⚠️ Wise is a destruction-of-property case — a prosecution under former Code § 3729 for tearing down a fence — which is why the defence reaches § 18.2-137 as well as § 18.2-119. And Wise did NOT hold that refusing the instruction is reversible error standing alone; it said reversal on that ground "might have been unnecessary". For that proposition cite O'Banion and McClung, 215 Va. 654. See the Annotated Authority section.

3. Entering to Damage — § 18.2-121 Turns on Purpose

"It shall be unlawful for any person to enter the land, dwelling, outhouse, or any other building of another FOR THE PURPOSE OF DAMAGING such property or any of the contents thereof or IN ANY MANNER TO INTERFERE WITH THE RIGHTS of the owner, user, or occupant thereof to use such property free from interference."

Two things that distinguish it from § 18.2-119

NO notice requirement The offence is complete on entry with the prohibited purpose; nobody need have forbidden it.
The purpose limb is broad Not only entering to damage, but entering "in any manner to interfere with the rights of the owner, user, or occupant ... to use such property free from interference."

Note the enhancement turns on the SELECTION of the property, not on anything said or done during the entry. Evidence of why this property was chosen is what carries it.

4. Destruction — § 18.2-137 Turns on Value and Intent

§ 18.2-137

Subsection	Conduct	Class
A	Unlawfully destroys, defaces, damages or removes WITHOUT THE INTENT TO STEAL any property, real or personal, not his own — or a war memorial, Civil War engagement marker, or boundary monument	Class 3 misdemeanor
B	A person NOT the owner INTENTIONALLY causes such injury, and the value or damage is LESS THAN $1,000	Class 1 misdemeanor
B	The same, where the value or damage is $1,000 OR MORE	Class 6 felony

Subsection A is the strict floor; subsection B is where intentional damage is graded by value. "Without the intent to steal" in A is what keeps this out of larceny.

The amount of loss "may be established by proof of the FAIR MARKET COST OF REPAIR or FAIR MARKET REPLACEMENT VALUE" — either measure, and the choice can decide the $1,000 line.

5. Neighbouring Sections

§ 18.2-119.1 — validity of signs forbidding trespass
§ 18.2-120 — instigating trespass by others; preventing service to persons not forbidden to trespass
§ 18.2-125 — trespass at night upon any cemetery
§ 18.2-138 — damaging public buildings
§ 18.2-146 — breaking, injuring, defacing or destroying a vehicle, aircraft, boat or vessel

Listed for routing only; none is set out on this sheet.

6. Defence Attacks & Responses

Defense attack	Prosecution response
Nobody ever told him to leave.	For the notice limb of § 18.2-119 that is the element, so prove it — oral, written, or by a reasonably visible sign. But check the PROTECTIVE-ORDER limb, which needs no forbidding at all, and § 18.2-121, which has no notice requirement either.
He believed he still had a right to be there.	THE SERIOUS DEFENCE, and it is complete if it succeeds — trespass requires a WILLFUL trespass (O'Banion), and a bona fide claim of right defeats it. Do not attack sincerity: a mistaken belief still works. Attack AUTHORIZATION — the claim "must rise to the level of authorization" (Reed, 6 Va. App. at 71). Expect the instruction; refusing it where evidence supports it is reversible error.
The sign wasn't visible.	The statute requires signs at a place where they "may be reasonably seen", and § 18.2-119.1 governs their validity. Photograph the sign and its sightlines.
He was allowed in at first.	The section reaches one who "goes upon OR REMAINS upon" after being forbidden. Notice given after a lawful entry still bites.
The damage was accidental.	Then subsection A of § 18.2-137 may still apply — it reaches unlawful destruction WITHOUT the intent to steal and does not require intent to damage. Subsection B is the intentional tier.
The repair estimate is inflated.	The statute permits proof by fair market cost of repair OR fair market replacement value. Put the measure that the evidence actually supports in front of the court.
This should be burglary, or it shouldn't be anything.	Entry with intent to commit a felony or larceny is burglary. Entry to damage or interfere is § 18.2-121. They are different offences, not a spectrum.

7. Before You Charge

Which question the facts answer — notice, purpose, or value
For § 18.2-119: who gave the notice, when, and in what form
OR, on the protective-order limb: the ORDER obtained, the statute it issued under identified, and SERVICE proved
CLAIM OF RIGHT anticipated — and met on AUTHORIZATION, not sincerity Trespass requires a willful trespass; a mistaken but bona fide claim of right is a complete defence.
If by sign: photographed, and reasonably visible from the point of entry
For § 18.2-121: the purpose to damage or to interfere, proved independently of the entry
Bias-selection enhancement considered — Class 6 felony with a six-month floor
For § 18.2-137: intentional (subsection B) or not (subsection A)
Value proved by repair cost OR replacement value, against the $1,000 line
Restitution and the subsection A affidavit-dismissal provision considered
Burglary ruled in or out — intent to commit a felony or larceny at entry

8. Annotated Authority

Annotated authority — research layer, not printed on the PDF

Wise v. Commonwealth 98 Va. 837, 838-39, 36 S.E. 479, 479, Va., 1900

The origin of the claim-of-right defence. Reversed and remanded. A verbal agreement to transfer whatever claim the grantor had to a disputed strip could not pass title, "but IT DOES BEAR UPON THE BONA FIDES OF A CLAIM OF RIGHT asserted by the prisoner, AND SHOULD HAVE BEEN ADMITTED" — excluding it was the error that required reversal. The court ALSO approved a proffered instruction that a defendant who acted "under a claim of right, believing it to be his own, and believing that he had a bona fide right thereto" must be acquitted: that instruction "PROPOUNDS THE LAW CORRECTLY, AND SHOULD HAVE BEEN GIVEN."

Practical value: ⚠️ TWO THINGS THE SHEET USED TO GET WRONG, both fixed here. FIRST, READ THE CAPTION: WISE IS NOT A TRESPASS CASE. The prosecution was under Code § 3729 for "unlawfully tearing down and leaving open a fence" — the ancestor of § 18.2-137, DESTRUCTION OF PROPERTY. That makes it MORE useful on this sheet, not less: it is the authority that the claim-of-right defence reaches the DESTRUCTION half as well as the trespass half. Reed and O'Banion later cite it as the leading trespass case anyway, which is how the defence crossed over. SECOND, WISE DID NOT HOLD THAT REFUSING THE INSTRUCTION IS REVERSIBLE ERROR. It held the opposite in terms: "it might have been UNNECESSARY TO HAVE REVERSED its judgment upon this ground IF IT STOOD ALONE." The instruction point was reached only because the case was going back anyway. For the proposition that refusal is itself reversible, cite O'Banion and McClung, not Wise.

Reed v. Commonwealth 6 Va. App. 65, 70-72, 366 S.E.2d 274, 278-79, Va. Ct. App., 1988

Conviction REVERSED AND DISMISSED. "[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. The claim NEED NOT BE ONE OF TITLE OR OWNERSHIP, but it MUST RISE TO THE LEVEL OF AUTHORIZATION." Criminal intent is an essential element of § 18.2-119 even though the statute is silent as to intent, and a good-faith belief negates it. On undisputed evidence that Reed lived on the island under a watchman's agreement with the contractor, he "established a bona fide claim of right AS A MATTER OF LAW", so the verdict should have been set aside.

Practical value: The sentence that decides most of these cases: "the criminal trespass statute DOES NOT AFFORD A SUBSTITUTE FOR LANDLORD TENANT DISPUTES." Where the accused was let in by someone and the fight is about whether that permission ended, the answer is an unlawful detainer, not a warrant. Note also that Reed made NO MOTION TO STRIKE at all — the court reached sufficiency under the ends-of-justice exception to Rule 5A:18, so a defence waiver is not a safe place to rest.

O'Banion v. Commonwealth Record No. 2698-97-4 (Va. Ct. App. July 25, 2000) (en banc), Va. Ct. App. (en banc), 2000

Trespass conviction REVERSED for refusal of the claim-of-right instruction; concealed-weapon conviction AFFIRMED. The trial court had refused the instruction on the view that the defendant "did not assert in his evidence any bona fide claim of right". That was error: his testimony that he understood his barment to lapse after NINETY DAYS, corroborated by two witnesses who heard the officer say so, was evidence of a sincere belief. "NOTWITHSTANDING THE FACT THAT THE JURY MAY WELL HAVE DISCOUNTED THE PROBATIVE VALUE of appellant's evidence, TO REFUSE THE PROFFERED INSTRUCTION WAS REVERSIBLE ERROR."

Practical value: The case to read before opposing a claim-of-right instruction — the threshold is evidence in the record, not a credible defence, and arguing weight is how the Commonwealth loses the conviction. Two practical details worth stealing from the facts: police served the barment notice but DID NOT GIVE HIM A COPY, and the three-month review policy was UNWRITTEN AND EXPLAINED ORALLY. Both are what let the mistaken-belief evidence in. Hand out the notice. ⚠️ UNPUBLISHED — there is no reporter citation, and under Rule 5A:1(f) unpublished decisions are citable but not binding. O'Banion also holds a BOX-CUTTER is a "razor" under § 18.2-308(A) by ejusdem generis and noscitur a sociis; that half belongs to the weapons sheet.

McClung v. Commonwealth 215 Va. 654, 657, 212 S.E.2d 290, 293, Va., 1975

"IT IS IMMATERIAL THAT THE JURY COULD HAVE REACHED CONTRARY CONCLUSIONS. IF A PROFFERED INSTRUCTION FINDS ANY SUPPORT IN CREDIBLE EVIDENCE, ITS REFUSAL IS REVERSIBLE ERROR."

Practical value: Two sentences, and they end the argument. This — not Wise — is the Supreme Court authority for the reversible-error proposition, and it is general, so it does the same work on every other sheet in the corpus.

Diffendal v. Commonwealth 8 Va. App. 417, 422, 382 S.E.2d 24, 26, Va. Ct. App., 1989

"[W]here evidence tends to sustain BOTH the prosecution's AND the defense's theory of the case, the trial judge IS REQUIRED TO GIVE REQUESTED INSTRUCTIONS COVERING BOTH THEORIES."

Practical value: The reason a strong Commonwealth case does not defeat the instruction. Both theories go to the jury or the verdict is at risk. O'Banion pairs it with Banner, 204 Va. 640, and Painter, 210 Va. 360, for the same point, and with Code § 19.2-263.2 — an accurate instruction may not be withheld merely because it does not match the model instructions.

Holland v. Commonwealth 28 Va. App. 67, 71-77, 502 S.E.2d 145, 147-50, Va. Ct. App., 1998

AFFIRMED, on an issue of FIRST IMPRESSION: a private property manager may appoint police officers as ATTORNEYS-IN-FACT under a limited power of attorney to serve barment notices, and a notice so served will support a § 18.2-119 conviction. Under the Dillon Rule the power was not express, but responding to a private citizen's request for assistance is "NECESSARILY OR FAIRLY IMPLIED IN OR INCIDENT TO" the powers granted by then-Code § 15.1-138 to prevent crime, arrest offenders and protect life and property. The court also disposed of the civil-matters objection: BARMENT IS INDEED A CIVIL MATTER, grounded in property rights, but the statute's "no power or authority in civil matters" clause does not prohibit a PRIVATE GRANT of authority over one.

Practical value: This is the case behind every apartment-complex barment prosecution in Virginia, and the notice is the element that fails. The power of attorney is evidence — bring it, and bring the officer who can say he served under it. ⚠️ CHECK THE SECTION BEFORE YOU CITE IT: Holland construes CODE § 15.1-138, WHICH HAS BEEN REPEALED. The opinion itself prints the successor, § 15.2-1704, which carries the same express powers forward, so the implication analysis survives — but cite the live section, not the one Holland quotes.

Mounce v. Commonwealth 4 Va. App. 433, 436, 357 S.E.2d 742, 744, Va. Ct. App., 1987

The ends-of-justice exception to Rule 5A:18 "IS A NARROW ONE" that allows consideration of an unpreserved issue only when THE RECORD AFFIRMATIVELY SHOWS THAT A MISCARRIAGE OF JUSTICE HAS OCCURRED. It is NOT SUFFICIENT that the record show a miscarriage MIGHT have occurred.

Practical value: The Commonwealth's answer when the defence tries to revive a point nobody made below — "might have" is the whole distinction. Reed is what it looks like when the exception actually applies.

Ball v. Commonwealth 221 Va. 754, 273 S.E.2d 790, Va., 1981

The measure of a certain miscarriage: a conviction was REVERSED despite the appellant's FAILURE TO OBJECT to erroneous jury instructions, because the record clearly showed he could only have been guilty of a lesser offence than the one he was convicted of. Reed treats this as the benchmark and finds "the certainty of a miscarriage of justice apparent in Ball".

Practical value: ⚠️ READ THE CAPTION BEFORE CITING: Ball is a CAPITAL MURDER case — the court held the record showed only FIRST DEGREE FELONY MURDER — and it appears on this sheet solely as the yardstick for the ends-of-justice exception. Do not describe it as trespass or property authority.

Luce v. United States 469 U.S. 38, 41-42, U.S., 1984

A defendant who DOES NOT TESTIFY cannot complain on appeal of a ruling on impeachment by a prior conviction: "[a]ny possible harm flowing from [a trial court's] ruling permitting impeachment by a prior conviction is WHOLLY SPECULATIVE." Requiring the defendant to testify to preserve the point lets the reviewing court weigh the impact "in light of the record as a whole" and "will also tend to DISCOURAGE MAKING SUCH MOTIONS SOLELY TO 'PLANT' REVERSIBLE ERROR in the event of conviction."

Practical value: Worth knowing on a misdemeanour docket, where the accused is often pro se and the prior-conviction skirmish happens before anyone decides whether he will testify. If he does not take the stand, the issue is gone. ⚠️ Luce construes FEDERAL RULE OF EVIDENCE 609 and is expressly NOT of constitutional dimension. It binds Virginia only because Reed ADOPTED ITS REASONING for our rules of evidence — so cite Reed adopting Luce, not Luce alone.

Smith v. Commonwealth 161 Va. 1112, 1117-18, 172 S.E. 286, 288, Va., 1934

The other side of the same coin: a criminal defendant WHOSE TESTIMONY IS IMPEACHED by evidence of a prior felony conviction has the right to introduce LIMITED EVIDENCE that the prior conviction was obtained on the basis of PERJURED TESTIMONY.

Practical value: The right exists, but Reed shows its limit — it is triggered by impeachment, so where the defendant never testifies the evidence of the prior conviction is "irrelevant, immaterial and thus inadmissible", and so is the evidence explaining it. ⚠️ NAME COLLISION — this corpus already carries THREE other cases called Smith, at 218 Va. 927 (hit-and-run), 219 Va. 455 (sexual assault) and 220 Va. 696 (firearms discharge). This is a fourth, from 1934, and none of them is authority for another's proposition.

Chrisman v. Commonwealth 3 Va. App. 89, 98, 348 S.E.2d 399, 403-04, Va. Ct. App., 1986

The Court of Appeals' statement of the Smith rule — a defendant impeached by a prior felony conviction may put on limited evidence that the conviction rested on perjured testimony.

Practical value: Cite alongside Smith when the point arises in the Court of Appeals; it is the modern authority for a 1934 rule.

State v. Hoyt 304 N.W.2d 884, 889, Minn., 1981

A claim of right IS NOT LIMITED TO A CLAIM OF TITLE OR LEGAL OWNERSHIP. A woman's bona fide claim of right to enter a nursing home, resting on TWENTY-TWO MONTHS OF DAILY VISITS and authorization from the patient's guardians, negated criminal intent to trespass EVEN THOUGH SHE HAD RECEIVED A LETTER REVOKING her visiting privileges.

Practical value: Reed relies on this to reach its "need not be one of title or ownership" holding, and the facts show how far the defence can stretch: a WRITTEN REVOCATION DELIVERED TO THE DEFENDANT was not enough, because someone else with apparent authority had let her in. Screen a barment file against that before charging. ⚠️ TWO WARNINGS. It is MINNESOTA — persuasive only, adopted into Virginia law through Reed. And ⚠️ NAME COLLISION: it is NOT Hoyt, 44 Va. App. 489 (2004), the abduction case that supplies the incidental-detention factors. Different court, different country of law, no relation.

Hayes v. State 13 Ga. App. 647, 79 S.E. 761, 762, Ga. Ct. App., 1913

"An act which . . . MIGHT APPEAR TO BE TRESPASS IS NOT IN FACT A TRESPASS, IF THE ACT IS COMMITTED IN GOOD FAITH by one who ACTUALLY AND SINCERELY BELIEVES that he is authorized (EITHER BECAUSE AUTHORIZED BY THE TRUE OWNER, OR BECAUSE HE BELIEVES HIMSELF TO BE THE TRUE OWNER) to do the act in question."

Practical value: The clearest single sentence on the defence anywhere in Reed's authorities, and it names both routes — permission from the owner and mistaken belief in one's own title. Quote it when the defence tries to confine claim of right to a title dispute. ⚠️ GEORGIA, 1913 — persuasive only, and it reaches Virginia only through Reed, which quotes it verbatim.