LAW OF TORT

TORTS AFFECTING LAND

TRESPASS TO LAND

NATURE OF TRESPASS – UNLAWFUL ENTRY; INTENTIONAL AND DIRECT INTERFERENCE; CONTINUING TRESPASS

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

INTRODUCTION TO TRESPASS TO LAND

Definition

• Trespass to land is the unlawful and direct interference with land in the possession of another person.

• It protects possession of land rather than ownership.

• It is one of the oldest torts in English law.

• Trespass is actionable per se, meaning the claimant does not need to prove actual damage.

Purpose Of Trespass To Land

• Protects exclusive possession of land.

• Protects privacy and security.

• Prevents unauthorised intrusion.

• Enables occupiers to control access to land.

Examination Definition

Trespass to land may be defined as:

The intentional or voluntary direct interference with land in the possession of another without lawful justification.

CHARACTERISTICS OF TRESPASS TO LAND

Direct Interference

• Interference must be direct.

• Indirect interference is usually dealt with under nuisance.

Possession Rather Than Ownership

• The claimant need not be owner.

• Possession is sufficient.

Actionable Per Se

• No proof of damage required.

• Mere entry creates liability.

Intentional Or Voluntary Act

• Defendant must voluntarily enter or interfere with land.

TRESPASS AND POSSESSION OF LAND

Who Can Sue?

General Rule

• Any person in possession of land may sue.

Examples

Owner Occupier

• Can sue.

Tenant

• Can sue.

Lawful Occupier

• Can sue.

Important Principle

Possession rather than ownership is protected.

Leading Case: Graham v Peat

Principle

• Person in possession may sue even without ownership.

Significance

• Established importance of possession.

UNLAWFUL ENTRY

Meaning

• The most common form of trespass.

• Occurs when a person enters land without permission or legal authority.

General Rule

Any unauthorised physical entry onto land constitutes trespass.

Entry Need Not Be Significant

Examples

• Walking onto land.

• Stepping onto land.

• Crossing boundary.

• Driving onto land.

Even Minimal Entry Is Sufficient

Principle

• Any physical intrusion can amount to trespass.

Leading Case: Ellis v Loftus Iron Co

Facts

• Horse’s head protruded over boundary.

Decision

• Trespass established.

Principle

• Very slight intrusion sufficient.

Significance

• Demonstrates breadth of trespass.

ENTRY ABOVE OR BELOW LAND

Extent Of Land Ownership

Traditional maxim:

Cuius est solum eius est usque ad coelum et ad inferos

Meaning:

Ownership extends upwards and downwards.

Modern Position

• Rights exist only to reasonable extent.

Airspace

• Protected to extent necessary for ordinary use and enjoyment.

Leading Case: Kelsen v Imperial Tobacco Co

Facts

• Advertising sign projected into claimant’s airspace.

Decision

• Trespass established.

Principle

• Airspace immediately above land protected.

Significance

• Important authority on airspace trespass.

Underground Intrusions

• Tunnels.

• Pipes.

• Foundations.

May amount to trespass.

Leading Case: Bocardo SA v Star Energy UK Onshore Ltd

Facts

• Oil company drilled beneath claimant’s land.

Decision

• Trespass established.

Significance

• Confirmed subsurface protection.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

INTENTIONAL AND DIRECT INTERFERENCE

Intentional Interference

General Rule

• Trespass usually requires intentional or voluntary conduct.

Meaning

• Defendant intended the act leading to entry.

• Defendant need not intend wrongdoing.

Important Distinction

Intention To Enter

Required.

Intention To Trespass

Not required.

Example

• Person deliberately walks onto land believing it is public land.

• Trespass still occurs.

Mistake Is Generally No Defence

Principle

• Honest mistake does not prevent liability.

Direct Interference

Requirement

• Interference must be direct.

Meaning

• Immediate physical intrusion onto land.

Examples Of Direct Interference

Person Walking Onto Land

• Direct.

Throwing Object Onto Land

• Direct.

Driving Vehicle Onto Land

• Direct.

Remaining On Land

• Direct.

Comparison With Private Nuisance

Trespass

• Direct interference.

Nuisance

• Indirect interference.

Examples

Smoke Drifting

• Nuisance.

Water Seeping

• Nuisance.

Physical Entry

• Trespass.

FORMS OF TRESPASS

Personal Entry

Examples

• Walking.

• Running.

• Driving.

• Climbing.

Objects Entering Land

Examples

• Throwing rubbish.

• Depositing materials.

• Construction materials crossing boundary.

Leading Case: League Against Cruel Sports v Scott

Facts

• Hounds repeatedly entered claimant’s land.

Principle

• Causing objects or animals to enter land may constitute trespass.

Significance

• Important authority.

Animals

General Rule

• Causing animals to enter another’s land may amount to trespass.

CONTINUING TRESPASS

Definition

• Continuing trespass occurs when unlawful interference continues over a period of time.

General Rule

• Trespass does not end merely because initial entry occurred in the past.

• Continuing presence creates continuing liability.

Examples

Refusing To Leave Land

• Continuing trespass.

Leaving Objects On Land

• Continuing trespass.

Remaining After Permission Expires

• Continuing trespass.

Leading Case: Holmes v Wilson

Facts

• Buttresses projected onto claimant’s land.

Decision

• Continuing trespass established.

Principle

• Ongoing encroachment creates continuing liability.

Significance

• Leading authority.

Continuing Occupation

Example

• Defendant enters lawfully.

• Permission later withdrawn.

• Defendant remains.

Result

• Continuing trespass.

Objects Left On Land

Example

• Machinery left on neighbouring land.

• Building materials left beyond boundary.

Result

• Continuing trespass.

Leading Case: Konskier v Goodman Ltd

Principle

• Failure to remove object may constitute continuing trespass.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

TRESPASS BY ABUSE OF PERMISSION

General Rule

• Entry may initially be lawful.

• Trespass arises when permission is exceeded.

Examples

Entering Restricted Area

• Visitor exceeds permission.

Remaining After Request To Leave

• Visitor becomes trespasser.

Using Land For Unauthorised Purpose

• May become trespass.

Leading Case: The Six Carpenters’ Case

Principle

• Abuse of permission may create trespass.

Significance

• Historic authority.

TRESPASS ACTIONABLE PER SE

Meaning

• No need to prove actual damage.

Importance

Claimant May Sue Even Where

• No financial loss.

• No physical damage.

• No injury.

Reason

• Tort protects possession itself.

Leading Case: Ashby v White

Principle

• Violation of legal right itself sufficient.

Significance

• Supports concept of actionable per se torts.

RELATIONSHIP WITH OTHER TORTS

Trespass And Nuisance

Trespass

• Direct interference.

Nuisance

• Indirect interference.

Trespass And Negligence

Trespass

• Intentional or voluntary direct interference.

Negligence

• Based upon breach of duty and fault.

Trespass And Occupiers’ Liability

Trespass

• Protects occupiers from intrusions.

Occupiers’ Liability

• Protects visitors and trespassers from dangers on land.

AO2 APPLICATION

Step 1

• Identify claimant’s possession of land.

Step 2

• Determine whether entry occurred.

Step 3

• Determine whether entry was authorised.

Step 4

• Determine whether interference was direct.

Step 5

• Consider whether trespass continues.

Step 6

• Apply relevant case law.

Step 7

• Reach conclusion.

AO3 EVALUATION

Strengths

Strong Protection

• Protects possessory rights.

Simplicity

• Clear rules regarding entry.

Actionable Per Se

• Protects rights even without damage.

Criticisms

Strict Approach

• Minor intrusions may create liability.

Historic Concepts

• Some rules based on old property principles.

Overlap

• Some overlap with nuisance and occupiers’ liability.

EXAM QUICK REVISION SHEET

Definition

• Direct and unlawful interference with land in possession of another.

Essential Elements

Possession

• Graham v Peat

Unlawful Entry

• Ellis v Loftus Iron Co

Airspace

• Kelsen v Imperial Tobacco Co

Underground Land

• Bocardo SA v Star Energy UK Onshore Ltd

Continuing Trespass

• Holmes v Wilson

Objects And Animals

• League Against Cruel Sports v Scott

Key Rules

• Direct interference required.

• Possession protected.

• Actionable per se.

• Mistake generally no defence.

• Continuing trespass creates continuing liability.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.