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Law > Torts Connected to Land: Trespass to Land > Flashcards

Torts Connected to Land: Trespass to Land Flashcards

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1
Q

Define trespass

A
  • The unjustifiable interference with land which is in the immediate and exclusive possession of another
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2
Q

What are the four essential elements of trespass to land?

A
  • There is direct interference with the land
  • The interference must be voluntary
  • No need to the defendant to be aware that they are trespassing
  • No need for the claimant to experience harm or loss
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3
Q

What type of interference does trespass require? Direct or indirect?

A
  • Direct
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4
Q

If the interference is indirect, what is the most appropriate action?

A
  • Private nuisance
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5
Q

Is placing things on a person’s land trespass?

A
  • Yes
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6
Q

What happened in Southport Corporation v Esso Petroleum (1954)? What did the claimant bring actions for? What was held? What were they not liable for? Why?

A
  • Small oil tanker ran aground due to carrying a heavy load and a steering fault in poor weather conditions. Oil was deliberately discharged in order to free the tanker. The oil drifted onto the claimant’s land
  • Claimant brought action for nuisance, negligence and trespass
  • CoA held liable for negligence
  • Not liable for trespass
  • The discharge of oil was not done directly on their foreshore, but outside in the estuary and so it wasn’t direct
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7
Q

Does a person need to voluntarily enter the land in order for it to be trespass? What case illustrates this? What was held?

A
  • Yes, it can only be trespass if the person has voluntarily entered the land
  • Stone v Smith (1647)
  • Held that a person forcibly carried onto land by other persons was not trespassing
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8
Q

Is awareness of trespassing needed? Example case? Held?

A
  • No. An innocent trespass is still a trespass. Mistake is no defence
  • Conway v George Wimpey & Co Ltd (1951)
  • Held - a person could be liable for trespass even if they are mistaken about the ownership of land or wrongly believe that they have permission to enter the land
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9
Q

Is there a need for the claimant to experience harm or loss in trespass? What does this mean? Define it

A
  • No need
  • Trespass to land is actionable per se
  • This means that there is no need for the defendant to have caused the claimant any damage or loss
  • Per se = in itself in Latin
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10
Q

Explain the term ‘who owns the land, owns to the heavens and down to hell’. How has it been restricted?

A
  • It is controversially used to explain the common law principle that ownership of land includes the air above and what is below the ground
  • It has been restricted through precedent and statute
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11
Q

Give two cases where the ‘trespass’ involved airspace

A
  • Bernstein v Skyviews and General Ltd (1977)

- Anchor Brewhouse v Berkely House Developments (1987)

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12
Q

What happened in Bernstein v Skyviews and General Ltd (1977)? What was held? Why?

A
  • Defendants had flown over the claimant’s land to take a aerial photo of his property which they then offered to sell him
  • No trespass
  • The claimant did not have an unlimited right to all airspace above their property, but only that which was necessary for ordinary use and enjoyment of his buildings
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13
Q

What happened in Anchor Brewhouse v Berkely House Developments (1987)?

A
  • Trespass occurred when the arm of a crane routinely swung over the claimant’s property - thereby violating the airspace above the claimant’s house
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14
Q

Give a case where the ‘trespass’ was below the surface of land

A
  • Star Energy Weald Basin Ltd v Bocardo SA (2010)
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15
Q

What was held in Star Energy Weald Basin Ltd v Bocardo SA (2010)?

A
  • Supreme Court held that the defendants had trespassed when they drilled oil wells below the surface of the claimant’s land from their own adjacent land
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16
Q

What change to trespass did the Infrastructure Act 2015 make?

A
  • Since the Act, land that is 300 metres below the surface can be exploited for petrol or geothermal energy without liability for trespass
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17
Q

Does possession mean ownership in terms of trespass?

A
  • No. In a rental scenario it is always the tenant and not the owner/landlord who can sue
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18
Q

Give three examples of things places on a person’s land that amount to trespass

A
  • Growing a creeping plant up the wall of a neighbour
  • Leaning a bike against a shop window
  • Stacking rubbish up against a neighbour’s wall
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19
Q

Give a case where the trespass involved animals

A
  • The League Against Cruel Sports v Scott (1985)
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20
Q

What happened in The League Against Cruel Sports v Scott (1985)? What was held? What did this case say about intention?

A
  • A hunt repeatedly allowed their dogs to stray onto land used as a sanctuary for deer
  • HELD - trespass so claimant obtained an injunction
  • Intention wasn’t necessary, but it makes an injunction easier to obtain if it’s an obvious pattern of behaviour
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21
Q

What happened in Hickman v Maisey (1900)? What was held?

A
  • Claimant owned land that racehorses were being trained on
  • Defendant stopped on a road through the land to observe the horses
  • HELD - trespass. Wouldn’t have been if the defendant had been using the road for its normal purposes, but he stopped
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22
Q

What happened in DPP v Jones (1999)? What happened on appeal?

A
  • Protestors at stonehenge were initially deemed to be trespassing for the same reason as in Hickman (they weren’t using the highway as a highway)
  • On appeal they were found not liable as they had not acted in a destructive way, nor had they prevented other highway users from using the road
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23
Q

What happened in City of London v Samede (2012)? What did the defendant use as a defence? What was held?

A
  • A camp outside St Paul’s started out as a protest but took on a permanent residency at the site
  • Defendant used the HR right to protest as a defence to the trespass
  • HELD - the right to demonstrate does not allow interference with the rights of other highway users and the right to enjoyment of the owner/occupier
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24
Q

Does trespass have to be momentary? What does this happen especially in relation to?

A
  • No, sometimes it can go on for years

- Things placed on land like shipping containers and sheds

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25
Q

The law allows the defendant to be sued for the interference for as long as it has been a trespass. Give a case that illustrates this

A
  • Holmes v Wilson (1839)
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26
Q

What happened in Holmes v Wilson (1839)?

A
  • Damages were payable in trespass for as long as buttresses built to contain a road that had been built on a claimant’s land remained in place
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27
Q

What is trespass by relation? What does the law state?

A
  • It occurs when someone takes possession of land which is then subsequently trespassed by the defendant
  • Law states that you can sue for damages to cover the period from when possession first started and not when the nuisance began
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28
Q

What does ab initio mean?

A
  • from the beginning
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29
Q

What is trespass ab initio? When was this type of trespass often used? Are such actions often successful today? Why?

A
  • A form of trespass where a person enters land with authority given by law rather than with the permission of the person possessing the land commits an act which is an abuse of that authority
  • The authority is cancelled retrospectively and becomes a trespass from the beginning
  • Often used in cases against the police who exceed the authority of a search warrant
  • Rarely successful today
  • Precedent and statute law have increased the power of the police when searching premises
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30
Q

Give four cases that involve trespass ab initio

A
  • The Six Carpenters (1610)
  • Cinnamond v British Airports Authority (1980)
  • Elias v Pasmore (1934)
  • Chic Fashions (West Wales v Jones) (1968)
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31
Q

What happened in the Six Carpenters (1610)? What was held? What was said on appeal?

A
  • Defendants had failed to pay for a second round of wine
  • Held trespass ab initio
  • On appeal said a trespass based on an omission did not count
32
Q

What happened in Cinnamond v British Airports Authority (1980)? What was held?

A
  • There were taxi drivers overcharging customers from the arrivals terminal
  • HELD - their wrongful deeds exceeded their permission to be there so trespass ab initio
33
Q

What happened in Elias v Pasmore (1934)? What was held?

A
  • Police collected evidence outside the scope of the warrant
  • HELD - entry = trespass in regard to the illegally collected items but it did not undermine the overall authority granted by the warrant for them to enter in the first place
34
Q

What happened in Chic Fashions (West Wales v Jones) (1968)? What was held?

A
  • Chic fashions accused of selling stolen designer clothes
  • Police had warrant to search but took items not identified in the warrant
  • HELD - entry not illegal or wrongful. Even thought the police wrongly took non-stolen items, warrants allow them to seize what they reasonably believe to be stolen
35
Q

Give three cases that concern intention

A
  • Basely v Clarkson (1681)
  • League Against Cruel Sports v Scott (1985)
  • River Wear Commissioners v Adamson (1879)
36
Q

What do the courts decree about intention in trespass?

A
  • That the very act of walking denotes an intention to move onto land
37
Q

What was held in Basely v Clarkson (1681)?

A
  • The act that led to the trespass (mowing grass) was an intentional one. This is all that was required
38
Q

What happened in League Against Cruel Sports v Scott (1985) in terms of intention?

A
  • The intention to hunt with hounds that led to the trespass was sufficient in establishing it as a trespass
39
Q

What happened in River Wear Commissioners v Adamson (1879)? What was held?

A
  • A storm threw a boat that was being steered by the defendant against a harbour wall, damaging it
  • HELD - whether the trespass is accidental or mistaken does not matter. Liability for trespass will still be incurred
40
Q

What are the three defences to trespass to land?

A
  • Legal Authority (or justification by law)
  • Consent (sometimes referred to as license)
  • Necessity
41
Q

A person is not liable for trespass if they have legal authority permitting them to be on that land. What are four examples of this?

A
  • The Countryside and Rights of Way Act 2000 gives the public certain rights of access to land provided that they comply with certain statutory restrictions
  • The Police and Criminal Evidence Act 1984 gives constables certain rights to enter land to make arrests and to search premises
  • There are rights of way established under common law. They are recorded on maps prepared by a local authority
  • There is common land, where although it might be owned by someone else, certain people have rights of access through custom for a particular purpose such as grazing livestock
42
Q

Does a license to enter land have to be implied or express?

A
  • Trick question. It can be either
43
Q

Give an example of implied consent

A
  • There is implied consent for people e.g postmen to walk on your drive/front garden in order to reach your front door
44
Q

If a person has been given consent to enter premises, when do they become a trespasser?

A
  • Once express or implied permission is withdrawn or if a person exceeds the limits of the permission (consent no longer a defence)
45
Q

Can permission be withdrawn even if it is a contractual license? Give a case to illustrate this

A
  • Yes it can be withdrawn

- Wood v Leadbitter (1845)

46
Q

What happened in Wood v Leadbitter (1845)? What was held? What other remedy could a person seek?

A
  • A man was ejected from a horse racecourse even though he had bought a ticket
  • HELD - his contractual license could be revoked, making him a trespasser
  • If having paid, you are asked to leave, you might have a remedy under the law of contract
47
Q

How long must the occupier allow for the defendant to get off their land? What happens if they don’t?

A
  • A reasonable time

- Trespass will occur

48
Q

What is the 4th defence to trespass?

A
  • Just tertii
49
Q

What is jus tertii?

A
  • A defence when you can show that the land that you have supposedly trespassed over does not actually belong to the claimant, but to someone else
50
Q

Give a case for jus tertii

A
  • Doe D Carter v Barnard (1849)
51
Q

What happened in Doe D Carter v Barnard (1849)? What was held?

A
  • A landlord granted a lease to a tenant. He did not own the land that he granted the lease on and therefore had no right to grant the lease
  • HELD - jus tertii could usually be used but not in the case of tenant and landlord
52
Q

The defence of necessity has two forms. What are they?

A
  • Public necessity

- Private necessity

53
Q

What does private necessity involve?

A
  • An act needed to protect one’s own property
54
Q

What does public necessity involve?

A
  • an act to protect the wider public against harm
55
Q

What is the general rule for the defence of necessity in trespass?

A
  • There must be an actual danger AND the acts of the defendant must be reasonable in light of all the facts
56
Q

Give three cases in trespass where necessity was used as a defence

A
  • Rigby v CC of Northamptonshire (1985)
  • Esso Petroleum v Southport (1954)
  • Monsarato v Tilly (1999)
57
Q

In Rigby v CC of Northamptonshire (1985), what was the defendant held liable for? Why? What were they not liable for? Why?

A
  • Liable for negligence for failing to provide adequate fire fighting equipment
  • Not liable for trespass as there was the defence of necessity
  • Not liable under R v F as the rule only applies to an ‘escape’ and not the intentional release of a dangerous thing
58
Q

In Esso Petroleum v Southport (1954), why was the defendant not liable?

A
  • Defence of necessity worked as the captain had to discharge the oil in order to protect his ship and the lives of his crew
59
Q

What happened in Monsarato v Tilly (1999)? Held?

A
  • Defendants entered claimant’s land and pulled up crops on the grounds of public necessity
  • HELD - the fact that they only pulled up certain crops made it clear that they were trying to publicise their group and its aims. They obviously weren’t doing it for public interest
60
Q

What are the remedies for trespass? (7)

A
  • Damages
  • Injunctions
  • Orders for possession
  • Abatement
  • Ejectment
  • Mesne Profits
  • Distress damage feasant
61
Q

Explain orders for possession as a remedy in trespass. What is it? What is it covered by? Issued following what? What will the order do?

A
  • A court order
  • Covered by the Civil Procedure Rules part 55
  • Issued by a court following a successful possession claim against trespassers
  • The order will instruct the defendant to leave the land by a particular date
62
Q

Explain self help/abatement as a remedy in trespass. What does it involve? What does it consist of? When is it not available?

A
  • Involves the common law right of a land owner or occupier to remove trespassers themselves
  • This consists of a person using reasonable force to remove trespassers
  • Not available when the trespass is on a residential property
63
Q

With abatement as a remedy for trespass to land, only reasonable force is allowed. Give a case where unreasonable force was used

A
  • Collins v Renison (1754)
64
Q

What happened in Collins v Renison (1754)? What was held?

A
  • A trespasser up a ladder was shaken off from a low height, causing him to fall to the ground
  • HELD - unreasonable force. In cases like this where the force is unreasonable it can amount to a non-fatal offence against the person
65
Q

Explain ejectment as a remedy for trespass. Who is it especially useful against?

A
  • Formal court procedure where you apply to the court for an order to get possession of the land back
  • Especially useful against squatters even if the claimant cannot identify whoever is in possession
66
Q

Explain mesne profits as a remedy to trespass. What is it? What does it also allow?

A
  • Special kind of court action which allows the claimant to recover from the defendant any profits that the defendant has earned from wrongfully occupying the land
  • Also allows the claimant to recover sums in damages representing the costs of repair and court recovery
67
Q

Give a case for Mesne profits

A
  • Farra Leongreen (2017)
68
Q

What happened in Farra Leongreen (2017)?

A
  • Defendant remained in a flat after the lease expired, and the courts granted the claimant the right to recover the mesne profits of rent that he would have earned from a paying tenant - as well as the cost of repairing the flat as the defendant had left it in a terrible state
69
Q

Explain distress damage feasant as a remedy to trespass. Example?

A
  • Another way of saying that you can keep someone else’s property that causes damage on your land until the damage has been paid for
  • E.g a football that broke a window
70
Q

Describe the recent entrance of elements of trespass into criminal law (2)

A
  • In recent years, Parliament has grown concerned over many incidents of trespass by protestors, hunt saboteurs, squatters and open air ravers
  • A number of statutory offences involving trespass have been created such as the offences of aggravated trespass and squatting in a residential building
71
Q

Under what act is the offence of aggravated trespass?

A
  • Criminal Justice and Public Order Act 1994
72
Q

What is aggravated trespass? (3)

A
  • Trespass on land with the intention of:
  • Intimidating any person/people so as to deter them from engaging in that activity
  • of obstructing that activity OR
  • Disrupting that activity
73
Q

What happens to trespass under the Criminal Justice and Public Order Act 1994? In what cases? What is the complaint about this?

A
  • Trespass becomes both a tort and criminal offence
  • In the cases of certain political demonstrations e.g Anti-Hunt activists
  • Complaint has been that this infringes rights under the HRA 1998 and that it criminalises legitimate activities
74
Q

Under what Act is squatting in a residential building a crime?

A
  • Legal Aid, Sentencing and Punishment of Offenders Act 2012
75
Q

What three conditions must be satisfied in order for there to be the offence of squatting in a residential building under the Legal Aid, Sentencing and Punishment of Offenders Act 2012?

A
  • The person is in a residential building as a trespasser
  • The person knows or ought to know that they are a trespasser
  • The person is living in the building or intends to live there for any period

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