Trespass to Land Flashcards
What are the 4 elements to trespass to land?
1) Direct interference with C’s land
2) Interference must be voluntary on D’s part
3) No need for D to be aware they are trespassing
4) No need for C to suffer harm/ loss to their land (actionable “per se”
when does trespass to land occurr?
When there has been an unjustifiable interference with land which is the immediate and exclusive possession of another
Who can sue ?
C does not own land but must be in possession, possession means the right to exclude others from the land
What is covered under Direct interference?
-physical entry
-throwing something onto the land
-remaining on the land when the right to be there has been withdraw
-abusing the right of entry
What is indirect interference?
= law of nuisance
What happened in the case of Southport Corporation?
An oil tanker was ran aground. Oil was then deliberately discharged to help free the tanker. The oil drifted onto C’s land. C sued under trespass to land. CA held D were not liable under trespass to land as it was not done directly
What is direct interference?
=trespass to land
What is voluntary interference?
The trespasser must enter Ds land voluntarily
e.g Stones
A person who was forcibly carried or thrown onto land by another is not trespassing
What is an awareness of trespassing?
=There is no requirement that D be aware they are trespassing
as confirmed by Conway (an innocent trespass is still trespass)
It is irrelevant if D is mistaken about the ownership of the land or wrongly believes they have permission
e.g Basely
What was confirmed in Conway?
an innocent trespass is still trespass
What happened in the case of Basely?
D owed land adjoining C’s and and in mowing his own land he mistakenly mowed some of Cs grass.
What is the C’s harm or loss?
Trespass to land is actionable per se and there is no need for D to have caused any damage to C
e.g Franklin
What happened in the case of Franklin ?
There was trespass when an unwanted arm came through on open window
What is a continuing trespass?
=trespass is a continuing tort
e.g Holmes (D built supports for a road on C’s land. Ds paid damages for the trespass but were held liable again for failing to remove the supports
What is the definition of “land”?
“who owns the land owns to the heavens and down to hell”
What is regarded as trespass in airspace?
e.g Bernstein
(D took aerial photographs of houses and offered them for sale to the owners. C objected to this and claimed D had trespassed on his airspace. However, the definition was deemed not extend to the height at which the aircraft had flown = not liable
What act protects commercial airlines from trespass to land?
S.76 (1) Civil Aviation Act 1982
what was the outcome of Kelson?
An advertising sign overhung Cs land amounted to trespass as it was at a “height as is necessary for the ordinary use and enjoyment of land”
What happened in the case Anchor Brewhouse Developments?
A site was being developed which involved very tall cranes. When the cranes were not being used the booms swinged freely over adjoining property = trespass
What is trespass below the land?
e.g Osborne
Ds dug a mineshaft under their land that eventually extended through to beneath Cs land. This was held to be trespass of the subsoil.
e.g Star Energy Weald Basin
SC held that D was trespassing when, from adjacent land, it had drilled oil wells that were 244 to 853 meters below the surface of Cs land.
HOWEVER S.43 Infrastructure Act 2015 now says that land that is 300 meters or more below the surface can be sued for the purpose of exploiting pretroleum
What is trespass AB initio?
specific part of trespassing and means “from the beginning”
=An initial lawful entry becomes actionable trespass if D abuses their permission to enter land, as the abuse of permission retrospectively negates it from the point of entry onto the land
This occurs when a person enters land with authority given by law
such as Police under S.8 PACE
What are the 3 defences to trespass to land?
1) consent
2) lawful authority
3) Necessity
What is the defence of consent?
If a person in possession of land gives someone permission to be on that land there is no trespass
express, implied or contractual
What is lawful authority?
legislation provides justification
e.g Police and Criminal Evidence 1984
S.8 allows police to search premises under a warrant
e.g Countryside and Rights Way Act 2000
e.g S.43 Infrastructure Act 2015
e.g S.76 Civil Aviation Act 1982
What is the defence of necessity?
Justifies trespass in emergency situations to deal with a threat
= known as private necessity if an act of trespass was needed to protect your own property against the threat of harm
=known as public necessity if the act protects the wider public against the harm
D’s actions must be reasonable
e.g Rigby (not reasonable)
e.g Cope (reasonable)
Courts do set limits
e.g Williams
What are the remedies to trespass to land?
Damages and injunctions are the usual remedies for trespass to land
But self-redress justified confirmed in Burton
What happened in the case of Hemmings?
Hemmings employed by golf club and with his position awarded a cottage. At some point hemmings was told to leave a job and subsequently leave the cottage. Hemmings refused so staff of golf club removed him and his stuff. The court said this was reasonable force
