Trespass

Contributed by Harriet Ketley and current to 1 September 2005

The most common form of trespass is entering or remaining on land without the permission of the owner. Bringing objects such as rubbish onto the property and dumping them there may constitute a nuisance.

While it is possible to commence civil proceedings against a person for trespass, in most cases, unless actual damage is caused, it is not really practicable because of the expense involved. Where the trespass involves a person coming onto a property unlawfully, a criminal offence may have been committed, and the police can be called and asked to remove the offender.

The police have wide powers to enter premises. In addition, certain other officials may enter premises without being liable in trespass, for example, gas and electricity employees (to read meters) and health inspectors.

REMEDIES

The legal steps which may be taken against a trespasser are:

• Ejectment – the occupier can eject the trespasser but can only use as much force as is necessary. If the trespasser uses force, the occupier may use similar force to protect themselves;
• Peaceful re-entry – the person entitled to possession of the land re-enters it without violence;
• Injunction – this is a Supreme Court order to restrain or prevent a trespass. In urgent cases an interim injunction may be obtained. The cost may be high and should be carefully considered;
• Writ for possession – if this action is successful a court officer can evict the trespasser;
• Action for damages – action is taken to sue for compensation.

DEFENCES

Defences to an action in trespass include:

• permission was given by the person entitled to possession;
• statutory authority, such as where a police officer enters to prevent a breach of the law or a bailiff enters in the course of his or her duty;
• abatement of a nuisance (for example, entrance onto land to stop the spread of a fire).