Trespass to Land

What is trespass to land?

Arises where someone intentionally enters, remains on or causes anything to be placed onto, land in the possession of another without lawful justification.

What constitutes land?

Land includes that which is attached to the land, and ‘upwards unto heaven and by analogy, downwards to hell’. All the soil beneath the land and its contents.

Entry

The slightest entry without lawful justification will amount to a trespass. Entry arises from the touching of the boundary of land

Authority: Whelan v Madigan

Remaining on land

You can become a trespasser if you lawfully enter land but then remain on it after your right to remain has ceased.

Trespass ab initio

Caused to be placed on

It is a trespass to place any chattel on the land of another or to cause any object or substance to cross the boundary of another’s land, or even to reach the boundary without lawful authority.

Legal authority: Guille v Swan

If you merely increase the likelihood that someone comes onto the land this should give rise to an action in negligence rather than trespass.

What is de facto possession?

When someone asserts a claim over property, the question arises as to whether the person asserting the claim has a right to bring an action of trespass. The answer is yes.

Legal authority: Petrie v Owners of SS Rostrevor (oysters on the shore, destroyed by defendants boat)

To establish de facto possession, you must establish an authority over the property through occupation or use.

Owners exceeding lawful authority

Where owners exceed their authority over property the lawful occupiers may have a claim of trespass against the owner.

Abuse of proprietary interest

A proprietary interest in land also allows you to bring a case for trespass where that interest in invaded.

Legal authority: Cronin v Connor ( extraction of turf allowed, cattle damaged his interest in it)

What constitutes legal entry?

Legal authority: The People (AG) v O’ Brien

Police entered without a warrant to the wrong address and seized goods.

Search warrant

Common law allows a search warrant to be issued by a District Judge or Peace Commissioner on reasonable grounds, social necessity.

Statute

Right of entry:

• to prevent or investigate criminal behaviour

• health and safety purposes

• transport

• essential services (Arterial drainage)

Abuse of lawful justification

When you exceed lawful authoirty to enter, you become a trespasser.

Legal authority: DPP v McMahon