Trespass to land

Issues surrounding trespassing

Trespassers can be a minor nuisance to some property owners, however, it can cause serious problems for others. Trespass is the unlawful occupation of, or interference with land or property belonging to someone else. Trespassing can take different forms such as ‘squatting’, dumping rubbish on someone’s land or encroaching on a neighbour’s land in a boundary dispute.

What is trespass to land?

Trespass to land is a civil wrong under the law of tort. Trespass is not, for the most part, a criminal offence. However, trespass on residential property which amounts to ‘squatting’ has been a criminal offence since 2012.

Civil trespass

The civil law provides remedies to those who are harmed by the conduct of other people. Trespass to land is one of the oldest actions known to the common law and consists of any unjustifiable intrusion by a person upon the land in possession of another. When a trespass is alleged, it is for the trespasser to justify the ‘trespass’ to avoid the consequences; for instance, they have a licence to occupy the property, or a legal right of way across someone’s land.

To prove trespass there must be an intention to interfere with the right of possession, and this includes removing a part of land or property belonging to someone else. Even a minimal encroachment on someone’s property may amount to trespass.

Trespass to land does not require proof of damage for it to be actionable in the courts. If damage is caused by a trespasser, a charge of criminal damage can ensue.

What are the types of trespass?

The most common form of trespass is entry by the trespasser on to the plaintiff’s land. Other forms of trespass include:

  • Placing objects on the land, such as fly tipping.
  • Removing land or property from the plaintiff’s land.
  • Abusing an existing right to be on someone else’s land, including remaining on the land when permission has expired.
  • Other actions that are deemed to be trespass under specific statutes.

There are other forms of trespass. As land includes subsoil and airspace, trespass can include using someone else’s land to drill down to access minerals beneath the property. Similarly, invasion of the airspace above land may constitute a trespass (limited to the height at which the invasion would interfere with the full use of the land). For example, overhanging eaves or other structures on a building that overhang an adjoining property may amount to a trespass.

What amounts to authorised entry to land?

If the alleged trespasser can prove they were authorised to be on the land in question, they can defend a claim against them for trespass. Permission to enter the land can be granted in a number of ways, including:

  • Express permission given by the plaintiff, whether verbal or written, such as in the form of a licence or a ticket.
  • Legal right of way, such as an easement over the land.
  • Public rights of way.

However, where there is an authorised right to be on the land, that right must not be exceeded or abused, otherwise a trespass may have been committed. For instance, if an individual has the right to use a specific field for exercising horses, they must not go outside of that area. If a licence permits someone to be on the premises until 10pm but they remain on site after 10pm, they will be trespassing.

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For more information on:

  • Necessity
  • Who can sue?
  • What damages can be sought?
  • Criminal trespass