Trespass to land

What does trespass to land allow?

1. Allows for the courts to award compensation to a landowner for the interference with their possessory rights and damage done. 

2. Allows for a person to assert a claim to ownership or possession of a disputed piece of land

elements of trespass to land

1. Unlawful Direct interference with land

2. Unauthorised entry

3. Plaintiff in Actual Possession.

4. Remedies Available

Unlawful Direct interference with land

• Don’t have to do physical damage (may be per se), only a positive and voluntary act is needed (Matchitt v Whangara B20 Incorporated)

• No defence of honest or reasonable belief of a lawful right. (Matchitt v Whangara B20 Incorporated)

• Property rights inviolate - can only be interfered with in pressing circumstances (De Richaumont v OTW Advertising)

examples of unlawful direct interference with land

• Entering and removing all belongings from the House onto the lawn, (Matchitt v Whangara B20 Incorporated)

• Entering onto neighbours property without permission to attach advertising (De Richaumont)

• Drilling under property for extraction of oil (Star Energy v Bocardo)

Unauthorised entry

Permission or consent from owner negates direct interference (De Richaumont v OTW Advertising)

Plaintiff in Actual Possession.

• Owner not in possession can’t sue in trespass 

  • Tenant in lease can

• Usually means occupation or physical control of land

• prima facie presumption that if an owner is in possession if nobody else is

• Possession = intention to possess + intent to exclude others (Matchitt v Whangara B20 Incorporated) 

• ‘Ownership extends to the heavens and all the way to hell” English common law maxim -> Applies to the down limited only if it is so deep as to be absurd - technological limitations (Star Energy v Bocardo)

• Protection goes upwards into the airspace to an uncertain extent ((Bernstein of Leigh (Baron) v Skyviews & General Ltd, accepted in Bocardo and by implication also in De Richaumont) 

  • The owner only has rights to such a height as necessary for the ordinary use and enjoyment of the land and structures upon it. No greater right to the airspace than any other member of the public. Explicitly relating to land going up but may extend to down too (Bernstein of Leigh (Baron) v Skyviews & General Ltd)

    • This would reach absurdity – Landowner only has rights to ordinary use and enjoyment of their land (Bernstein v Skyviews)

Remedies Available

• Damages dependent on the nature of interference (Matchitt v Whangara)

• Can include emotional distress, indication of possessory rights, other damages). (Matchitt v Whangara)

Matchitt v Whangara B20 Incorporated

Plaintiffs; Cherie Matchitt + husband.  Lived in property owned by Whangara B20 incorporated.  25th September 2006, the MLC granted Whangara an eviction order against the Matchitts (for in 2 months) 27th of November 2006 Mrs Te Momo entered the property, removed fixtures, left everything on the lawn and made the house uninhabitable.  But there had been a misunderstanding of the terms of the eviction order (Matchitts thought = 4 months, Te Momo = 2).  Issue: Whether trespass  occurred (possession?)

The Matchitts had 4 months not 2 = Matchitt’s in possession  Direct interference can be per se (without loss), positive voluntary act.  No defence of honest or reasonable belief of a lawful right.  Possession = intention to possess + intent to exclude others.  Yes there was trespass.  Remedies available;  Damage to the land not need be established. Damages can be a vindication of possessory rights.  Aggravated damages available in some cases/

Star Energy Weald Basin Ltd v Bocardo SA

Bocardo owned land.  Part of the oil field lay below B’s  land.  Star had a licence to extract but  needed to drill under B’s land  to access. Issue 1: Whether Bocardo’s title to the land actually went down through the land as far as where the wells and tubing actually were located.  Issue 2: whether Bocardo has, or was entitled to, the possession of the land (subsurface substrata) that far down.

Cuius est solum, eius est usque (ad coelum at ad inferos). (To whomsoever it belongs, it is theirs all the way to the heavens and all the way to hell.  Does have something to offer, if it’s possible to drill all the way down then they can own all the way down to where the pipes go. = latin term applies to possession of under the ground.  Above land = complications  Bernstein of Leigh (Baron) v Skyviews & General Ltd - owner only has rights to such a height as necessary for the ordinary use and enjoyment of the land and structures upon it. No greater right to the airspace than any other member of the public.  No question (despite emerging technology for opening up subsurface) that it will become a public highway (unlike the air) Strata below the land and minerals belong to person in possession but there must be a stopping point

De Richaumont Investment Co Ltd v OTW Advertising Ltd

DRI leased the side of their  building to OTW to place a  billboard.  OTW needed to access DRI  property to maintain the  billboard.  DRI refused and demanded a  fee.  OTW tried to get an order under Property Law Act 1952 (Now 2007) allowing access over the neighbouring property -> won in DC, DRI appealed to the HC Issue: Whether OTW entry to  perform obligations a   trespass

"Rights of a property owner on,  above and below their land are  absolute"  These rights can only be   diminished by:   1. Competing interests in land 2. Contract  3. Statute (most importantly)  Starting point: Court must  consider property rights   inviolate.