Trespass to land

From Lawiki - The law notes repository
Jump to navigation Jump to search
Lawiki for and by law students - find us on Facebook if you want to help us edit this Law Wiki.

Not professional advice - LAWIKI cannot guarantee the validity of any information




A trespass to land is any interference with a person's property rights in his land. This may constitute entering the property without authorization, occupying someone else's land, or placing objects (frequently rubbish) on the land, among other things. The significance of trespass to land is not merely that damages may be awarded - often these cases do not involve loss or injury - but that one is entitled to eject a trespasser. In addition, since trespass is unlawful, a policeman who is committing a trespass cannot, as a matter of principle, be 'in the course of his duties'. This may be a defence open to someone charged with an offence under s.89 of the Police act (1994).

As well as the surface of the land and the buildings on it, it is well established that the ground beneath the land can be protected by an action in trespass. It is less clear whether the air above can be so protected. It now appears that if one person's buildings or structures enter the air above another's land, this is a trespass (Anchor brewhouse v berkely house (1987)). It is less clear whether the airspace above the land can be the subject of an action in trespass. As far as aircraft are concerned, it can not (s.12 of the Civil Aviation Act (1972), provided that the aircraft are operating at a reasonable height and in a reasonable way).

It is a matter of some contention who has a right to sue in trespass to land. Clearly the would-be claimant must have some Interest in land, but must it amount to an Estate in land or would a mere licence suffice (see: Licence)? Clearly the notional (paper) owner of the land will have standing to sue in trespass. It appears also (Harper v charlesworth (1825)) that possession, without paper title, will suffice. However, the fact of possession does not appear to give standing to sue the notional owner of the land (Delaney v tpsmith ltd (1946)). A more difficult question is whether a person who is not in actual occupation, and has no estate in land, has standing to maintain an action in trespass. It has generally been assumed not; a mere licencee does not have standing unless in actual occupation of the land. However, doubt has been cast on this position by Manchester airport plc v dutton (1999). It appears that there are now circumstances in which a licencee will be able to sue in trespass without being in occupation.

Despite popular opinion to the contrary, 'trespass' per se is not a criminal matter. One cannot be prosecuted for it. However, recent developments have extended criminal sanctions to certain trespassory activities. See, for example, Aggravated trespass and Trespassory assembly.

There is some overlap between trespass to land and Nuisance, but in nuisance the claimant must show that he has suffered some actual loss or damage.