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With an ever increasing number of people living on this island,
and with houses being squeezed into smaller and smaller spaces, the
issue of trespass to land is becoming, and will become ever more,
pertinent to modern living.
What is Trespass to Land?
Trespass to land comes under the law of Tort. Basically, the law
of tort concerns itself with providing remedies to people who find
themselves hurt/harmed by the conduct of other people. Trespass to
land is one of the oldest actions known to the common law (although
it no longer is a crime at common law), and can be defined as an
unauthorised interference with a person’s possession of land. It is
the direct invasion of possession which is actionable, thus, once
the invasion has been proved, it is for the defendant (the person
committing the invasion) to justify his actions. There has to be an
intention to interfere with the right of possession, thus
involuntary actions are not actionable. Trespass to land does not
require proof of damage for it to be actionable. Thus, the
defendant cannot claim that he entered the land reasonably and/or
with due care.
What are the types of Trespass?
The most common form of trespass is entry by the defendant on to
the plaintiff’s land. However, there are other forms of trespass,
such as placing objects on the land, or even placing objects that
are in contact with the plaintiff’s property or land. Where someone
was lawfully on the land, either by exercising a right of entry, or
because he had permission to be on the land, that person will be
committing trespass if he abuses the right or permission by acting
outside the purpose for which he was granted the right/permission.
A trespass will also be committed if he remains on the land after
the right/permission has expired.
There are other forms of trespass:
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subsoil - entry below the land, at any depth, constitutes a
trespass.
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airspace - invasion of the airspace above the land may also
constitute a trespass, but is limited to the height at which the
invasion would interfere with the full use of the land.
For example, overhanging eaves will be a trespass. A
trespass will also be committed if a structure that is connected
to an owner‘s adjoining land overhangs their neighbour’s land,
even if it is at a height that would not necessarily affect the
neighbour‘s use of the land. Conversely, overhanging tree
branches will only be classed as a nuisance (where damage has to
be proved).
Can I have authorised entry to the land?
As trespass in an unjustified entry on to land in another’s
possession, permission to enter the land can be given in a couple of
ways. Either permission can be granted by the plaintiff, or it can
be conferred by way of law to give a right of entry:
-
licence - this is a permission which makes lawful that
which would otherwise be unlawful. Thus, a person who enters the
land by way of licence will not be a trespasser. However, if that
person remains on the land after the licence has expired, or has
been revoked, or he exceeds the conditions of the licence, that
person will become a trespasser.
-
rights of entry - this may be by way of an easement for, for
example, a private right of way, granted by the plaintiff; or a
public right of way. Right of entry can be conferred by both common
law and by statute. Necessity is a defence to trespass to land.
For example, under common law a neighbour had no right of access to
a neighbour’s land to make repairs to a building, even though that
building had become dangerous. However, under the Access to
Neighbouring Land Act 1992, an occupier can make an application to
the court for an access order to enable them to enter the
adjoining/adjacent land to carry out repairs. The court will not,
however, make the order where the adjoining occupier would suffer
interference with, or disturbance with the full use or enjoyment of
his land, or would suffer hardship to such a degree that it would
not be reasonable to grant the order. The court may require the
applicant to pay compensation for any loss or damage or any loss of
privacy or other substantial inconvenience.
Who can sue?
As trespass of land is a wrong against the possession, not
ownership, of the land, only the person who has exclusive possession
of the land in question can sue. Thus, possession refers to
occupation or physical control of the land - use of the land without
possession is not sufficient; nor is ownership of the land without
possession.
What damages can be sought?
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The plaintiff may seek damages, or an injunction, or both.
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where the trespass is trivial, damages may be nominal or an
injunction refused.
-
where a trespass concerns some use of the land without
causing damage, the damages will be measured in relation to the
value of the defendant’s use.
-
where the trespass has caused physical damage to the land,
damages are measured by the diminution in value of the land, not
the cost of restoration.
-
a person who has been dispossessed of their land, may bring
an action for the recovery of the land. In order to do the
latter, however, the plaintiff must establish a right to
immediate possession of the land.
-
a plaintiff may bring an action to claim damages for his
loss during the period of dispossession. The compensation will
be for the value of the use of the land and the occupation of
the land, plus any damage to the land itself.
-
a person who has been wrongfully dispossessed may undertake
re-entry. Thus, a person in possession of the land is entitled
to use reasonable force to expel a trespasser, as long as the
trespasser was first asked to leave.
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