Definition of trespass to land

Press, 9 November 1988, Page 57

Definition of trespass to land

By Mr Graham Rossiter, lecturer in business law, Massey University The purpose of this article is to review the general principles of the law of trespass to land, with particular reference to some specific areas in which questions may arise as to the possible liability in this regard of the real estate professional. Essentially trespass in this context is a wrongful interference with the rights to a particular parcel of land held by the person lawfully entitled to possession of it. Liability may be: ® Civil under the law or tort; or © Criminal under the provisions of the Trespass Act, 1980. Although dealing with the same species of unlawful and wrongful act the rules of liability arising under the civil and criminal law are somewhat different and have to be considered separately. Definition of a trespass to land in the context of the civil law or tort is largely a matter of distilling the principles to be gleaned from a long series of case decisions. Salmond on the Law of Torts and McVeagh on Land Valuation Law, suggest that this form of trespass can be committed to any one of the following ways: (a) The act of entering upon land in the possession of another. (b) Remaining upon such land after initial unauthorised entry or after authority to be there had come to an end; or (c) Placing or leasing a material object upon the land in question. There are a number of specific points to bear in mind when considering the various elements of the law of trespass. First, it is not the owner of the land who had the right to sue in trespass but the person in legal occupation of it. In this respect trespass to land is the same as any other species in this particular tort. The interest protected is that of possession. Second, the right of the person in possession extends as a matter of legal theory at least not only to the surface of the land but also beneath and above that surface. (The rules in this regard have been whittled down somewhat as a result of certain developments in case law and the enactment of various statutes. Those aspects are largely outside the ambit of this article.)

Third, liability is dependent upon proof of an intentional entry to land without authority. Absence of intent in this regard must, however, be distinguished from an honest belief of a right to enter. It seems clear that the latter is not a defence, at least to a civil action in trespass. “If the entry is intentional, it is actionable even though made under an inevitable mistake of law or fact and even though the defendant honestly believed that the land was his own or that he had a right of entry on it.” (Salmond, p. 49.) The remedies for trespass are essentially two-fold: damages and injunction. Damages may be claimed even if no actual loss has been sustained by the plaintiff. It was said in one case that “even invasion of property, be it ever so minute, is a trespass.” However, in practice only

nominal damages will be awarded in the case of a momentary trespass not accompanied by actual damage or loss to the plaintiff. The injunction is a discretionary remedy granted by a court in its equitable jurisdiction restraining the continuation of some unlawful act. In case of trespass to land, an injunction will rarely be granted where the interference is other than repeated or of significant duration. The criminal law of trespass is somewhat different in its content and effects. Under the Trespass Act, 1980, a breach of that statute may principally arise in either of two ways. First, an offence is committed by anyone who trespasses on any place and after being warned to leave, “neglects or refuses to do so” — s 3(1). Second, a criminal trespass occurs when anyone

goes on to a property after receiving a “warning to stay off” the land in question — s 4(4). Warnings pursuant to s 3 or 4 may be given by or on behalf of the occupier and can be oral or in writing — s 5. The penalties for offences against these provisions of the act are a fine not exceeding $lOOO or a term of imprisonment not exceeding three months — s 11. It follows from the foregoing that mere entry on to land is not of itself a criminal trespass. It is the failure to leave after being required to do so or a trespass after a warning to stay off that primarily gives rise to criminal liability. However, it should be borne in mind that certain miscellaneous offences are created by the Trespass Act including a refusal to give one's name and address to the occupier of the land that has been entered.