Trespass to land Flashcards
Important concepts
Ownership: greatest collection of rights known to the law
Possession: a lesser right, physical control of an object and there is an intent to control it.
Can they be Separated? Yes. A renter or tenant has possession of land, but not ownership. Tort of trespass protects the person in possession (landlord doesn’t have right to turn up whenever they feel like it).
Land: extends to the center of the earth and the heavens at common law. Anything attached to the land becomes part of it.
Direct
Southport Corporation v Esso Petroleum Co Ltd.
Principle: What is important is how the interference with the possession results from D’s act: building a spout so that it conveys water directly on P’s land is comparable to pouring water directly on P’s property (direct), but if rainwater overflows to P’s property this is indirect.
Facts: Where oil dumped by D was carried across water and landed on a beach owned by P. Disallowed the action of trespass to land as it was indirect. Oil was carried by an intermediary (wind and waves). In Southport Corporation v Esso Petroleum Co Ltd it was held that to discharge into an estuary oil that was carried by the action of the tide onto P’s foreshore was not a direct act, it was consequential. If D deliberately employs the force of wind or water to cause a thing to go onto land, that is direct.
Positive
Innes v Wylie
D must positively interfere with P’s land.
Interference with land
Land includes not just the land’s surface, but buildings and property affixed to it, the land’s subsoil (to any depth, unless mining rights have been granted to another person), a certain amount of airspace above it; and certain ‘rights’ in respect of the land, such as the right to its ‘fruits’.
Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd.
Where an advertising sign projected a few inches into P’s airspace, he was able to bring a successful action in trespass.
It usually presumes the person who is in exclusive possession of the soil, premises, forecourt and the like is also in exclusive possession of the airspace. The courts will make the assumption unless it is show that the exclusive possession has been given to another.
To What Height? – Bernestein v Skyviews?
In Bernstein of Leigh (Boron) v Skyviews & General Ltd D was not liable in trespass when its aircraft flew ‘many of hundreds of feet’ above P’s land, taking aerial photographs of P’s house. It was found that a landowner’s rights in the airspace do not extend to an unlimited height. The rights are instead restricted to such height as is necessary for the ordinary use and enjoyment of the land and the structures upon it. The precise height at which the right to bring the action ceases is a question of fact. Cases suggest that where the trespass is caused by structural projections or fixtures that intrude into the neighbouring airspace, at whatever height the intrusion takes place, that will amount to trespass.
Do Transient Intrusions Count? Graham v KD Morris
P was owner and occupier of a house, next door telecom were building a giant building due to extend 15 floors. In Oct 1973, D constructed a crane. P became concerned about 80ft crane. Crane was to go up 360ft. Job of the crane was 10 ft above machinery deck, 142ft length with 130ft radius. When not in use, crane was left free to rotate, when wind blew, crane would move and the crane would be suspended above the roof of P’s house. P demanded D take action to restrain jib. D said this was not possible for safety reasons (crane could topple over). P sought an injunction to restrain crane (a discretionary remedy so does not have to be awarded even if all elements fulfilled, a person seeking an injunction has to give the usual undertaking, if they lose the trial they have to pay the cost of the other side). Question was, the intrusion into the airspace was not permanent, could transient intrusions amount to trespass? There was no difficulty, yes, they could.
Di Napoli v Newbeach Apartments
Principle: posessor’s rights extend below the surface for a considerable depth.
Facts: D’s erection of rock anchors beyond the boundaries of D’s land and in P’s land was trespass, even though it was below the usable subterranean space.
Star Energy Weald Basin v Bocardo SA
Principle: An analogy cannot be drawn between airspace and subsoil. Subsoil has not become the highway that airspace has. There have to be limits, such as where pressure and temperature make the idea of anyone being in possession absurd.
The land must be in exclusive possession of P
A plaintiff must have actual, exclusive possession of the land. This is a sufficient interest to mount an action against any intruder, except one with a superior title, such as the actual owner of the land, where a right to exclusive possession that is good against that person must also be shown.
Statute of Frauds. Statue of Frauds says that, subject to some exceptions, a contract for the sale or lease or transfer for any interest in land has to be evidenced in writing and signed by the parties.
Modern equivalent is Property Law Act.
Delaney v TP Smith.
Principle: P had to prove right to possession, difficulty was the only proof was an oral agreement. Under Statute of Frauds, an oral agreement is insufficient to pass interest in land. Accordingly, although P was in physical possession of the house, he couldn’t prove he had a lawful right to possess the right.
Development:
Provision in QLD law for a tenancy of less than 3 years which takes effect in possession no longer requires proof of a written document.
Intentional
As in cases of trespass to the person, there need be no intention to cause harm, or even to commit any wrong. Whilst the act of interference must be intentional in the sense of being voluntary, there is some uncertainty as to what more (if anything) is required. In practise, most trespasses are deliberate, which may explain why the number of cases discussing this issue is small.
Prior to Safewhen Stores there used to be a field of law called Occupier’s Liability. Under this law, an occupier owed different standards or duty of care depending upon the class of an entrant to the premises. At one end of the scale were invitees (owed the highest level of care). licensees were owed a slightly lower standard of care. At the other end of the spectrum were trespassers (owed a very low level of care). That was the state of the law in
Public Transport Commission v Perry.
Principle: The acts of D must be intentional and/or voluntary. D does not commit an actionable trespass by trespassing onto P’s land involuntary.
Facts: Mrs Perry was on a railway platform, had an epileptic fit, and fell onto the tracks. She was run over by a train and horribly injured. She bought a ticket and given permission to enter, thus a licensee. D argued that because she had no permission to be on the tracks and was thus a trespasser. HCA held she wasn’t a trespasser as her act wasn’t voluntary. Thus, she was owed a great standard of care in occupier’s liability.
Elements of trespass to land
Direct
Positive
Intentional
Interference with land
P is in exclusive possession of the land
Southport Corporation v Esso Petroleum Co Ltd.
ELEMENT: DIRECT
Principle: What is important is how the interference with the possession results from D’s act: building a spout so that it conveys water directly on P’s land is comparable to pouring water directly on P’s property (direct), but if rainwater overflows to P’s property this is indirect.
Innes v Wylie
ELEMENT: POSITIVE
D must positively interfere with P’s land
Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd.
ELEMENT: INTERFERENCE WITH LAND
Principle: Where an advertising sign projected a few inches into P’s airspace, he was able to bring a successful action in trespass.
It usually presumes the person who is in exclusive possession of the soil, premises, forecourt and the like is also in exclusive possession of the airspace. The courts will make the assumption unless it is show that the exclusive possession has been given to another.
Bernestein v Skyviews
ELEMENT: INTERFERENCE WITH LAND
To What Height?
In Bernstein of Leigh (Boron) v Skyviews & General Ltd D was not liable in trespass when its aircraft flew ‘many of hundreds of feet’ above P’s land, taking aerial photographs of P’s house. It was found that a landowner’s rights in the airspace do not extend to an unlimited height. The rights are instead restricted to such height as is necessary for the ordinary use and enjoyment of the land and the structures upon it. The precise height at which the right to bring the action ceases is a question of fact. Cases suggest that where the trespass is caused by structural projections or fixtures that intrude into the neighbouring airspace, at whatever height the intrusion takes place, that will amount to trespass.
Graham v KD Morris
ELEMENT: INTERFERENCE WITH LAND
Do Transient Intrusions Count?
P was owner and occupier of a house, next door telecom were building a giant building due to extend 15 floors. In Oct 1973, D constructed a crane. P became concerned about 80ft crane. Crane was to go up 360ft. Job of the crane was 10 ft above machinery deck, 142ft length with 130ft radius. When not in use, crane was left free to rotate, when wind blew, crane would move and the crane would be suspended above the roof of P’s house. P demanded D take action to restrain jib. D said this was not possible for safety reasons (crane could topple over). P sought an injunction to restrain crane (a discretionary remedy so does not have to be awarded even if all elements fulfilled, a person seeking an injunction has to give the usual undertaking, if they lose the trial they have to pay the cost of the other side). Question was, the intrusion into the airspace was not permanent, could transient intrusions amount to trespass? There was no difficulty, yes, they could.
Delaney v TP Smith.
ELEMENT: THE LAND MUST BE IN EXCLUSIVE POSSESSION OF P
Principle: P had to prove right to possession, difficulty was the only proof was an oral agreement. Under Statute of Frauds, an oral agreement is insufficient to pass interest in land. Accordingly, although P was in physical possession of the house, he couldn’t prove he had a lawful right to possess the right.
Statute of Frauds. Statue of Frauds says that, subject to some exceptions, a contract for the sale or lease or transfer for any interest in land has to be evidenced in writing and signed by the parties.
Modern equivalent is Property Law Act.
Development:
Provision in QLD law for a tenancy of less than 3 years which takes effect in possession no longer requires proof of a written document.
Public Transport Commission v Perry.
ELEMENT: INTENTIONAL
Principle: The acts of D must be intentional and/or voluntary. D does not commit an actionable trespass by trespassing onto P’s land involuntary.
Facts: Mrs Perry was on a railway platform, had an epileptic fit, and fell onto the tracks. She was run over by a train and horribly injured. She bought a ticket and given permission to enter, thus a licensee. D argued that because she had no permission to be on the tracks and was thus a trespasser. HCA held she wasn’t a trespasser as her act wasn’t voluntary. Thus, she was owed a great standard of care in occupier’s liability.
Defences to trespass to land
Necessity
Consent
Lawful authority
Necessity
The interference was reasonably necessary to protect persons or property from the threat of real and imminent harm. It is not enough that the interference was merely a convenient way of avoiding harm. There must have been some ‘urgent situation of imminent peril’. D’s mistaken belief as to the source of the danger is sufficient to found the defence.
It is not necessary for D to prove that the means adopted to preserve life or property succeeded. It is not necessary for D to prove that but for the interference, persons or property would have suffered injury or destruction.
All that is required is that the response was reasonable in light of the risks thrown up by the situation of imminent peril. D must show it was not any act of negligence on D’s part that created or contributed to the occasion of necessity.
Should D be required to compensate P for any damages P has suffered aa a result of the act done in necessity? The argument for compensation is strongest where the necessity relates to protecting property as there is little reason for prioritising the interest of the property owner the threat to which created the necessity (P1) over those of an owner of property damaged or destroyed (P2) in an attempt to protect P1’s property.
P might be compensated out of public funds where an act is done because of a public necessity (e.g. a house pulled down to stop a fire from spreading).
Consent
There can be no trespass to land if there has been consent to the interference. Consent is frequently referred to as having a license to be on land. License can be express (a contractual license) or implied (implies consent for a member of the public to go upon the path or driveway to the entrance of any dwelling for the purpose of lawful communication with the person in the dwelling).
As long as the entry falls within the license, the fact that there may be other reasons for entry does not make a person a trespasser.
Lawful authority
It is a defence to trespass to land that D has lawful authority to interfere with P’s possession (e.g. police, RSPCA).
Licence (Consent)
Kuru v State of New South Wales [2008] HCA 26
Principle: The police argued, among other things, that they were authorised to be on the premises by various sections of the Crimes Act 1900 (NSW). Those sections, they argued, permitted officers to enter and remain in premises in certain instances of suspected domestic violence. For present purposes it suffices to note that, on the construction afforded to the relevant provisions by the majority, the Act afforded no authority to the police to remain in the flat once the appellant asked them to leave
Express consent
Barker v R
Principle: Trespass may be committed by a licensee after lawful entry where a license is given for one purpose, but the licensee enters for another purpose.
Implied consent
Wilson v NSW
Principle: the licensee must have been clearly told that the implied license has been revoked for there to be a valid revocation of the license. The communication must be one that a reasonable person in the position of the licensee or the actual licensee recognises as revocation.
Cowell v Rosehill Race Course
Principle: If you enter with permission, but that permission is withdrawn, you don’t become a trespasser the instant permission is revoked you need to be given a reasonable time to leave during which you are not a trespasser.
Halliday v Nevill
Principle: there was an implied license for members of the public to enter a private abode for legitimate purposes such as making contact with the occupier of the dwelling.
Damages for trespass to land
Compensatory
Aggravated
User fee
Punitive
Compensatory damages
Damages are calculated by reference to the loss the plaintiff has suffered as a result of the trespass. The relevant remoteness of damage rule allows for the recovery of all ‘natural and probable consequences’ of the trespass (TCN Channel Nine Pty Ltd v Anning), which could include any damage to the land, consequential financial loss and even, in some circumstances, personal injury and mental trauma.
Aggravated damages
Can be awarded if the trespass has resulted in particular affront to the plaintiff’s dignity on account of the officious, abusive, insulting or humiliating way in which the trespass has taken place. They are quite common in cases of deliberate, wrongful intrusions by state authorities (particularly police officers). For an example, see NSW v Ibbett
User fee damages
This is a sum of damages representing a reasonable rent for the defendant’s use of the plaintiff’s land. Such damages are available even if the plaintiff would not have used the land himself; and even if he would never have agreed to allow the defendant to rent it. Sometimes courts regard these damages as compensating the plaintiff’s loss of the ‘right’ to use his land. Alternatively, they can be understood as making the wrongdoer pay for the gain he obtained at the landowner’s expense, by using the land without paying for it (see the English case of Ministry of Defence v Ashman [1993] 66 P&CR 195 esp at 199 and 200-2 and Hampton v BHP Billiton (No 2) [2012] WASC 285 (WASC: Edelman J). Awards based on the defendant’s gain are called’ restitutionary’ awards. Whether these damages represent compensation for a plaintiff’s loss, or restitution of the defendant’s gain (there is a heated academic debate about this), they are a standard and uncontroversial remedy and result in an award of a reasonable sum for the defendant’s use of the land. They can be claimed in addition to compensatory damages for any harm the plaintiff caused through the trespass, such as damage to the land.
Punitive damages
Designed to punish a defendant and to deter future wrongdoing. They are reserved for the most serious, deliberate intrusions.
Injunctions
These must be sought from the court. The normal form of an injunction is a prohibitory injunction to require the defendant to cease (and not repeat) the trespass. The award of an injunction to restrain a continuing trespass is usual, but subject to a court’s ultimate discretion and a court has the power in an exceptional case to award damages instead (‘in lieu’) if it considers that the harm caused by issuing the injunction would be disproportionate.
Abatement
This is self-help remedy enabling a person who is suffering a trespass to eject a trespasser from the land, so as to ‘abate’ the trespass. The plaintiff need not obtain a court order. The amount of force that can be used to eject a trespasser must be reasonable in the circumstances. Normally, ejection must be preceded by a request for the trespasser to leave. If a person goes beyond the use of reasonable force, he or she may herself be liable for battery or assault e.g. Delaney v TP Smith.
