Trespass To Land

Front 1

Define

Back 1

Bocardo SA v Star Energy UK Onshore [2011] 1 AC 380 at [6] (per Lord Hope): “a trespass occurs when there is an unjustified intrusion by one party upon land which is in the possession of another.”

consider elements.

Front 2

1) Elements

Back 2

direct interference with land

voluntary interference

no need to be aware they are trespassing

no requirement of harm/ damage (actionable per se)

Front 3

Voluntary interference

Back 3

deliberate entry is required: (need intention as to the act of trespass, not trespass itself)

1) An involuntary trespass is not actionable: Smith v Stone (1647) where D was carried onto the land of P by force and violence of others; there was trespass by the people who carried D onto the land, and not by D. (person pushing/ throwing etc may be liable)

2) Duress is not a defence! Gilbert v Stone (1648)

(Facts: Defendant was threatened with injury if he didn’t go onto land and steal plaintiff’s horse.)

Duress will not be a defence to trespass if allowing such a defence would deny adequate relief to the plaintiff as cannot have action against threatening party??? duress is not a relevant motive for intentional torts so does not factor into defences.

Front 4

Awareness of trespass

Back 4

1) The defendant is liable in trespass for any encroachment he made voluntarily:

[ASQUITH, L.J. The fact that the plaintiff did not know that he was a trespasser is immaterial on the question whether he was a trespasser.]

== conway v George wimpey and co (Facts: an unauthorised passenger is a trespasser in the cab of a lorry, even if he believes he has permission to be there).

2) SO: innocent trespass where mistaken about permission/ ownership still actionable

Front 5

Negligent incursion

Back 5

Conarken Group Ltd v Network Rail Infrastructure Ltd [2010] EWHC 1852 (TCC) : “a non-deliberate but negligent incursion onto somebody else’s property is a trespass. That… appears to be a respectable view which is consistent with logic and principle… it would be different if the incursion was involuntary and unavoidable.”

League Against Cruel Sports v Scott [1986] (a master of hounds was held liable for negligently failing to prevent his pack entering property -- knowing there was real risk failed to control)

Front 6

No harm or damage

Back 6

protects land from interference by allowing possessor to exclude other people rather than compensating for damage.

actionable without proof of damage but trivial incursions may attract trivial damages or lead to refusal of an injunction

Front 7

Manifestations of trespass in land

Back 7

*physical entry

*remaining after permission revoked

*exceeding extent of permission granted

*placing or projecting objects onto the land

TRESPASS IS A CONTINUING TORT -- fresh liability may arise as long as tortious conduct continues. (eg placing object, refusing to remove)

Front 8

What counts as land

Back 8

1) soil, property built on it, temporary structures and plants.

2) subsoil:

a) subsoil and surface can be possessed by diff people. (cox v glue: dig holes then trespass against both)

b) Star Energy Weald Basin Ltd v Bocardo SA: even if landowner deprived of ownership of materials by statute, intrusions beneath surface still constitute trespass although quantum of damages ltd. (Lord Hope: obvs some stopping point where pressure etc. render concept of strata belonging to anyone as absurd )

3) airspace

a) Structure fixed to the land:Anchor Brewhouse Developments v Berkley House Ltd (where the defendant erects a structure on his land which overhangs his neighbour’s land, then that is a trespass)

b) Structure not fixed to D's land: (Bernstein v Skyviews and General Ltd:

(Facts: D aerial pics of houses and offered for sale to owners. held D flown w/o permission but right of ownership was limited to height necessary for ordinary use/enjoyment. (here did not extend to height flown)) the claimant’s rights in the airspace extend only to such a height as is necessary for the ordinary use and enjoyment of the land and structures of the land

Front 9

Protected interests

Back 9

tort protects possession of land rather than ownership. so if division of ownership and possession, (landlord tenant) interest protected is the party who is entitle to exclusive possession

AG Securities v Vaughan: clarifies who has exclusive possession (above) also emphasises that those with licenses eg guests, visitors and lodgers lack exclusive possession so cannot bring action.

Family members who live in the same house owned by a person cannot sue.

Front 10

Who can sue?

Back 10

in reference to older cases, Lord Hope in Bocardo SA v Star Energy UK Onshore Ltd :in the absence of evidence to the contrary, the owner of land with the paper title/ he who is claiming possession through the paper owner is deemed to be in possession of the land.

(if no paper owner, intention may be relev as no possession w/o intention in law)

in particular case: difficult to say actual possession as had done nothing to reduce the strata but paper owner of strata so factual possession awarded.

Front 11

Trespass ab inito

Back 11

an initially lawful entry (that authorised by law itself only!!) becomes actionable trespass if abuses permission to enter --- this is trespass from beginning as abuse negates permission from point of entry

Abusive??? consider whether consistent with consistent with express/ implied permission to enter. : what was reasonable to expect C might do with land?

Front 12

Defences

Back 12

1) Licence (i.e. consent or permission---express/implied) (but consider if exceed permission to enter)

2) Contractual licence (payment of entry fee/ tickets)

3) Lawful authority: e.g. police powers of arrest under the Police and Criminal Evidence Act 1984

4) Necessity: trespass justified in emergency situations to deal with perceived threats. does not matter if threat perceived or real. :

Necessity may apply in three situations (per Lord Goff in Re F [1990] : sterilise woman with mental condition):

a)Public necessity --- to save other's property

b)Private necessity --- to save own property

c)Where it is necessary to come to the aid of another whose person or propertyis in immediate danger

Front 13

Remedies

Back 13

self help: In general the law does not encourage resort to it so there are several restrictions in place: (a) need for possession(b) the force used must be of a reasonable/appropriate degree(c) the situation must be clear, simple or an emergency.

a) landowner may use reasonable force to repel/ expel trespassers unless obtained full possession (eg squatters --- need Action for recovery of land (ejectment): a special procedure enabling the claimant to obtain ‘an order for possession’ against persons in occupation of his land even if he is unable to identify some or all of them)

b) also for objects placed on land --eg overhanging branches encroaching on land--- as long as return property to owner

Mesne Profits / User Damages: loss suffered through being kept out of possession. The basis for calculating damages is a hypothetical negotiation between C and D as to a reasonable payment for the usage of C’s land.

Injunctions: Anchor Brewhouse Developments v Berkley House (Docklands Developments) Ltd (1987)injunction to prevent cranes trespassing (held that as a matter of established authority, the claimants are entitled as of course to injunctions to restrain continuing trespass)

-------but-------

Jaggard v Sawyer [1995] : The award of an injunction is not ‘of course’ (i.e. automatic) but “usually turns on the question: would it in all the circumstances be oppressive to the defendant to grant the injunction to which the plaintiff is prima facie entitled?” (per Millett LJ)

----and----

Senior Courts Act 1981, s. 50: Courts can award damages instead of an injunction