What is trespass to land? the legal definition and who can sue.
Trespassing is entering someone’s property without his or her permission. The property can be a house or building but can also include land, movable properties like boats and caravans, as well as temporary erected properties such as scaffolding.
Trespass to land: Trespass to land is a direct and unlawful interference and can occur when a person enters another person’s property without his or her consent. Trespass is actionable per se which means that the trespasser does not have to know or have the intention of trespassing. Once the trespasser has entered the property, he or she is liable. A person can also be liable for trespassing if he places something on another person’s land without his consent.
Trespass is not only limited to land and properties but can also extend to:
Land and subsoil: Bocardo v. Star Energy (2010) The defendant extracted oil beneath the land without having permission from the claimant.
Airspace: Trespassing can also occur if the interference was above the ground of the property and it was of a reasonable height. In Bernstein v. Skyviews & General Ltd (1977) the defendant flew over the claimant’s land and took photos. The claimant sued for trespassing onto his airspace and invasion of privacy. The claim was dismissed as the airplane was flying too high and so it did not interfere with claimant’s usage of land.
Who can sue? To bring a claim in trespassing, the claimant has to have exclusive rights in the land or property. It means that landowners and people who have exclusive rights in land such as tenants can sue.
Defences: A person will not be trespassing if he acquired permission from the land owner, or where such permission was implied; for example, a customer going into a shop.
If the visitor is a licensee: Certain people and professions are allowed to enter one’s property if they have a valid reason to do so. Examples can include a police officer, a postman, and fire fighters etc. However such licensee or a valid visitor can become a trespasser if while on the premise he does something which he was not allowed doing.
Remedies in trespass: The claimant can be awarded damages or can obtain an injunction, or both.