Trespass to land | Lanbuk on the Law of Torts

In simple terms

means going onto, staying on, or putting something on someone else's land without permission or lawful excuse. It is : the owner can sue even if no damage was done. Mistake about whose land it is gives no defence.

What is trespass to land?

Trespass to land is a direct and unjustified interference with land in the possession of another. The claimant must be in possession of the land; a tenant can sue, and so can someone in actual possession without title, against everyone except a person with a better right.

Trespass is actionable per se, so no harm needs to be shown. The law protects the right to for its own sake.

Forms of trespass

Entry: Walking onto land, driving onto it, or reaching over a wall. Even officials need lawful authority: in Entick v Carrington state messengers who entered a house without lawful warrant were liable.

Remaining: A person who enters with permission becomes a if he stays after the permission ends and he has had a reasonable time to leave.

Placing things: Throwing stones onto land, dumping rubbish, or leaning a ladder on a wall. Making animals or things go onto the land also counts, as in League Against Cruel Sports v Scott.

Intention and mistake

The defendant's act must be voluntary, but he need not know he is trespassing. In Basely v Clarkson a man who mowed his neighbour's grass by mistake was liable.

Airspace and below ground

The owner owns the airspace above the land to the height needed for the normal use of the land. A sign sticking over a shop was a trespass in Kelsen v Imperial Tobacco, but an aircraft flying high overhead was not in Bernstein v Skyviews. Tunnelling under land or mining beneath it can also be trespass.

Trespass ab initio

A person who enters by authority given by the law (not by the owner) and then abuses it by a positive wrongful act is treated as a trespasser from the start (ab initio). A mere failure to do something, like not paying for wine, is not enough: The Six Carpenters' Case.

Defences

Licence: Permission (a licence) from the person in possession. A licence can be withdrawn, after which the visitor must leave within a reasonable time.

Lawful authority: Entry allowed by law, such as police acting under a valid warrant or statutory power.

Necessity: Entry to prevent a real and serious danger, done reasonably: Cope v Sharpe.

Re-entry: A person who has the right to possession may enter to take it back, using no more force than is reasonable. Courts discourage self-help because it can lead to violence.

Remedies

Damages (nominal where there is no loss), an to stop continuing or repeated trespass, and an action for recovery of land by a person entitled to possession. An occupier may also ask a trespasser to leave and, if he refuses, use reasonable force to remove him.

Memory map

Trespass to land

Elements

Direct interference
Land in claimant's possession
No consent or justification
Actionable per se

Forms

Entry
Remaining
Placing things

Space

Airspace to reasonable height (Kelsen; Bernstein)
Subsoil

Special

Mistake no defence (Basely v Clarkson)
Trespass ab initio (Six Carpenters)

Defences

Licence
Lawful authority
Necessity (Cope v Sharpe)
Re-entry

Words and Latin in this note

Exclusive possession: The right to keep everyone else out, including the landlord, except so far as the lease allows entry. It is what turns a permission into a lease. Open the note.

Take-home points

Trespass to land is a direct, unjustified interference with land possessed by another.
It is actionable per se; no damage need be proved.
Mistake about ownership is no defence (Basely v Clarkson).
Airspace is protected only to the height needed for ordinary use (Kelsen; Bernstein).
Abuse of legal authority by a positive act makes the entrant a trespasser ab initio.
Defences include licence, lawful authority and necessity.