Study Notes on Trespass to Land

Trespass to Land
Introduction

  • The tort of trespass to land focuses on protecting an individual's interest in their land rather than their enjoyment of it, in contrast to private nuisance.

  • It allows for a straightforward claim, as there is no requirement to prove damage.

  • Definition and scope of land are broad, allowing for a wide range of behaviors to constitute trespass.

45.1 Nature of Trespass

  • Definition: Trespass to land is "the intentional and unlawful direct interference with land that belongs exclusively to another person."

  • Definition of Land: Underlaying expansively, land includes:

    • The ground itself

    • Anything attached to the land (buildings, trees, etc.)

    • Anything below the land (subsoil, minerals)

    • Anything above the ground (airspace) up to a reasonable height.

Legal Reference

  • Civil Aviation Act 1982, Section 76(1): No trespass is committed if an aircraft flies at a reasonable height above someone’s property.

Case Examples

  1. Lord Bernstein v Skyviews and General Ltd (1978)

    • Summary: In this case, Aerial photographs were taken from an aircraft flying above Lord Bernstein's property. The court found no trespass as the aircraft flew at a height considered beyond ordinary land usage and therefore did not interfere with Bernstein's use of his land. This case exemplifies the balance between property rights and the acceptable limits of aerial intrusions.

  2. Kelsen v Imperial Tobacco Co. Ltd (1957)

    • Summary: The case involved an advertisement sign that extended 20 cm into the claimant's shop, which constituted trespass as it interfered directly with the use and enjoyment of the claimant's land. The court ruled in favor of Kelsen, emphasizing that even minor intrusions that impact the property can be considered significant.

  3. Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd (1987)

    • Example: Here, a crane's arm swung into the airspace above a person's property while carrying out construction work. The court held that this action qualified as a temporary trespass, reinforcing the notion that any physical intrusion into another's airspace, whether temporary or prolonged, could constitute trespass.

  4. Star Energy Weald Basin Ltd v Bocardo SA (2010)

    • Summary: In this case, the defendant drilled into the claimant's land without permission. Despite no physical interference with land enjoyment, the court ruled in favor of the claimant, highlighting that unauthorized activities below ground level still constitute a trespass under the expansive definition of land ownership rights. This ruling emphasizes the importance of consent in activities involving subsoil.

45.1.1 Unlawful Entry

  • Key Point: Trespass occurs if no permission exists for entry or if the individual exceeds the permission granted.

    • Legal Principle from The Calgarth (1927): "When you invite a person into your house to use the staircase, you do not invite them to slide down the bannisters." This principle illustrates that permission can be limited to specific actions.

Key Types of Unlawful Interference

  • Trespass by wrongful entry: Entering the land without permission, for example, a person entering a private garden without a legitimate reason.

  • Remaining on the land: Staying on the property after permission has ended, such as a former tenant loitering after their lease expires.

  • Placing objects on the land: E.g., leaving construction debris or abandoned vehicles on another's property without consent.

  • Going beyond permission: Exceeding the originally granted rights of entry, like accessing only one section of a property but using the entire area.

45.1.2 Intentional and Direct Interference

  • Intent Requirement: Defendants must intend to enter the land, including mistaken intentions.

    • Case Example: Basely v Clarkson (1682)

      • Summary: A defendant mistakenly mowed a neighbor's land, failing to establish a defense due to the intentional act of mowing, even though he misunderstood ownership. This case shows that intent can exist even when the trespasser did not intend to cause harm but actively engaged in an unlawful act.

  • Negligent Conduct and Liability: Liability may arise from negligent actions that result in trespass.

    • Case Example: League against Cruel Sports v Scott (1986)

      • The court found liability for the master of the hunt when dogs entered private land after permission was denied, as negligence in controlling the dogs directly resulted in the trespass.

Examples of Trespass

  • Walking across property boundaries without permission.

  • Remaining on the land after permission has ended (e.g., overstaying in a rental).

  • Deliberately throwing items onto another’s property or extending construction beyond permitted limits.

45.1.3 Continuing Trespass

  • Ongoing trespass occurs when an individual fails to remove an object from another's land once placed unlawfully, such as machinery left on a property after work is completed.

  • Daily damages: New claims arise for each day the trespass persists.

    • Case Example: Holmes v Wilson (1839)

      • Summary: Continuous support structures for a road built on another's property resulted in daily damages until the structures were removed, indicating a liability that accumulates with the ongoing nature of the trespass.

Summary of Trespass Elements

  • Airspace: Possession extends to a reasonable height above land.

    • Case reference: Lord Bernstein v Skyviews and General Ltd (1978)

    • Statutory reference: Section 76(1) of the Civil Aviation Act 1982.

  • Subsoil: Depth possession acknowledged, with a notable case for reference being Star Energy Weald Basin Ltd v Bocardo SA (2010).

  • Unlawful Entry: Necessitates no permission to enter, assessed through intent and/or negligence.

    • Case references include: The Calgarth (1927), Basely v Clarkson (1682), League against Cruel Sports v Scott (1986).

Internet Research

  • Additional resources are available on the relationship between civil and criminal trespass at www.mylawyer.co.uk/trespassing-a-A76076D34460.

Implications and Evaluations

  • Effectiveness of Trespass Law: The common law of trespass allows for action without proven damages, arguably harsher on defendants.

  • Historical context: Formerly a criminal offense, the trespass retains deterrent elements but primarily acts to resolve boundary disputes in practice.

  • Damages: Generally minimal unless significant damage occurs; aggravated damages may be available due to exceptional conduct causing distress.

  • Injunctions: Commonly used in trespass cases, effective in protecting landowners' rights.

Legislation Affecting Trespass

  • Infrastructure Act 2015: Grants energy companies rights to frack beneath certain protected areas without trespass claims, enabling operations up to 1200 meters below ground, with limited compensation for landowners (as low as £100).

  • Legal Aid, Sentencing and Punishment of Offenders Act 2012: Designates certain forms of trespass as criminal offenses, particularly in residential properties, thus providing dual avenues for claimants seeking to remove trespassers.

Exam-Style Questions

  1. Compare and contrast trespass to land with private nuisance considering the protection of similar interests.

  2. Advise parties regarding rights and potential remedies in a neighbor dispute involving trespass damage to property.

Test Yourself

  1. Define trespass to land.

  2. Define land for the purposes of this tort.

  3. Provide two case examples that illustrate the definition of land.

  4. Describe circumstances under which a person can trespass by mistakenly entering another’s land.

  5. Explain how a continuing trespass occurs and its implications for damages.