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.
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. If a theatre goer is asked to leave the theatre because of their behaviour, they will be trespassing if they refuse to leave.
Where a licence or other form of permission is revoked, authorisation to be on the land or property is withdrawn. If the licensee still goes onto the property thereafter, they may be trespassing.
Sometimes, it is necessary to go onto someone else’s land without authorisation. Necessity is a defence to trespass to land. For example, the police and other law enforcement authorities have power to go onto land in the lawful execution of their duties.
In addition, 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?
The person who has “immediate and exclusive” possession of the land that has been subject to trespass can sue. Possession refers to occupation or physical control of the land (this may or not be the legal owner of the property – eg. it could be the tenant in commercial property).
What damages can be sought?
The plaintiff may seek damages, or an injunction, or both. If the trespass is continuing, an application for an injunction can be made – but it will have to be proved that the trespasser is in unlawful possession or use of the land.
Where the trespass is trivial, damages may be nominal and 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 decrease in value of the land, not the cost of restoration.
If the plaintiff has been dispossessed of their land, they can bring an action for the recovery of the land. However, they must establish a right to immediate possession of the land in order to succeed. They can also claim damages for any loss sustained during the period of dispossession. Any damages will be for the value of the use and occupation of the land, and any damage to the land itself.
Since 2012, it is a criminal offence to trespass in residential property, effectively criminalising squatting. Under section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 it is an offence for someone to be in a residential building as a trespasser, having entered as a trespasser; and that person knows or ought to know that they are a trespasser; and they are living in the building or intend to live there for any period.
The police have powers to permit forced entry and arrest for this offence. On conviction, an individual may be jailed for up to 51 weeks, or receive a fine up to level 5.
The law of trespass is complex. We recommend you seek specialist advice from civil litigation solicitors if you need to take action, or defend a claim involving trespass.