Trespass to Land

Question 1

What is the 2x protected interest?

Answer 1

1- Land rights and ownership

2- Protects possessory rights

Question 2

Is this tort actionable per se?

Answer 2

Yes - you do not have to prove that you suffered loss or damage

Question 3

What are the 2 elements?

Answer 3

1- Direct entry upon land by D in possession of P OR causing anyone/thing directly to enter land AND

2- Remaining on land once right to be there is revoked OR direct interference with the right to take someone from another land

Question 4

1st element - Direct entry

What are the 4 factors of this element?

Answer 4

1- Direct - must be a physical act

2- Voluntary - the act of entry has to be intentional

3- Upon the land e.g. fixture (Shattock), living things growing on it, buildings

4- Possessed by - P must have the intention to possess land AND exercise actual control over that land to the exclusion of others (Hewitt). Joint tenants have equal rights of possession.

Question 5

2nd element - Remaining OR Direct interference

What are the 3elements?

Answer 5

1- Implied license for anyone with lawful reason to proceed to front door

2- Express license to do approved purpose

3- Necessity (must be imminent)

Question 6

2nd element - Remaining OR Direct interference

What are the factors of the 1st factor of IL?

Answer 6

1- Must be legitimate purpose at REASONABLE time of day FOR these purposes. Public interest is important. Extends no further than necessary. (Hewitt)

2- IL can be revoked earlier(Dehn)

3- IL can be revoked by action/words at any time (Hewitt)

4- When IL revoked, must give reasonable time to get off premises (Hewitt)

Question 7

2nd element - Remaining OR Direct interference

What are the factors of the 2nd factor of EL?

Answer 7

1- Permission given to someone with possession. Occupant need not be there. (Hewitt)

2- 2 opposing joint tenants must rely on purpose

Question 8

2nd element - Remaining OR Direct interference

What are the factors of the 3rd factor of Necessity?

Answer 8

1- Reasonable ground to preserve human life;e, prevent serious physical harm, assist someone suffering harm (Dehn)

2- For Police - No common law necessity but codified in s 317 Crimes Act

Question 9

What are the DEFENCES?

Answer 9

1- Implied consent

2- Express consent

3- Necessity

Question 10

What are the REMEDIES?

Answer 10

1- If not damage to land, likey nominal

2- No liability for damages, unlike battery (Mayfair)

? see if loss was foreseeable, causation, intentional, only economic??