Trespass to Land

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:

  • subsoil – entry below the land, at any depth, constitutes a trespass.

  • 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?

  • The plaintiff may seek damages, or an injunction, or both. 

  • 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.