Trespass Flashcards
What is trespass of land?
Unlawful presence on somebody else’s land.
What form of interference is required for trespass?
Interference must be intentional and direct and an action in trespass to land is actionable per se (ie without proof of damage)
Who can sue in trespass?
Claimant must have legal interest in the land, namely a possessionary or proprietary interest ie they must own to land or otherwise be in possession of it
Who would be the correct person to sue where a trespasser possesses demised land?
Correct claimant would normally be tenant or licensee in possession rather than landowner as landowner will only have a right to sue in trespass where there would be damage to their interest beyond the term of the lease/licence
What loss or damage is required for trespass?
Trespass is actionable per se so no actual damage is required.
Where there is no actual damage, the harm compensated is the unjustifiable interference with the claimant’s land by D
What are the two elements required for trespass?
- direct and physical interference
- intention
What amounts to land in the context of trespass?
Anything under the land, built on the land and the airspace above it.
What are categories of physical interference?
- entering the claimant’s land eg walking across private garden without permission
- remaining on the claimant’s land when permission has been revoked eg tenant staying in rented property after the lease has expired
- doing something that is not permitted on the claimant’s land eg entering an area which says ‘staff only’ when you are not staff, pulling down or removing anything on the land without permission
- placing objects on the claimant’s land without permission eg fly-tipping, parking on neighbours land
What intention is required for trespass?
D must intend the direct action the results in the trespass but need not intend to trespass.
Intention can be implied.
Why was intention to trespass implied in the League Against Cruel Sports v Scott?
D knew there was a real risk of the dogs entering the claimant’s land. By persistently hunting close to prohibited land in circumstances where it was impossible to prevent trespass by the dogs, amounted to intention to trespass
What are the defences to trespass?
- permission (consent)
- legal authority
- necessity
What is the defence of permission to trespass?
That D has express or implied permission or a licence to enter or remain on the land.
To be valid, D must not exceed boundaries of their permission
What is the defence of legal authority to trespass?
If body has legal authority to enter land such as police.
If body with legal authority enters land and commits wrongful act on premises then original entry becomes a trespass
What is the defence of necessity to trespass?
Trespass was necessary to protect either a public or private interest
Eg chimney being destroyed to prevent fire spreading further
Oil being discharged to save ship from sinking and killing crew
What are the remedies for trespass?
- damages for harm already suffered
- injunction to prevent continuing trespass or where trespasser threatens to repeat trespass if serious in nature
- re-entry - self-help remedy which may be available where owner/occupier has been excluded from the land. Only reasonable force can be used to re-enter
- recovery of land - alternative to re-entry, owner/occupier can seek a court order for D to be removed (action of recovery of land)
- mesne profits - claimant may claim money from D who wrongfully occupied the land and made a profit or saved expenditure in doing so eg where tenant fails to leave at end of tenancy and stops paying rent
