TRESPASS TO LANDTrespass – anyone who in some fashion interferes with your possessory rights in property or enters upon your land without permission or privilege commits a trespass and is potentially liable for at least nominal damages even though his motive may have been beyond reproach.

Element of Trespass to Land The trespass occurs when there exists an

intention to trespass, the act of entry is done voluntarily and the interference to the plaintiff’s land is foreseeable as a consequence of the defendant’s act.

Cont’d Interference may occur in a variety of ways

:

Remaining on the plaintiff’s land. The trespass applies only the failure to remove things that have been wrongfully left on the land.

Cont’dA licensee whose licence has been terminated also becomes a trespasser and is liable for damages if he continues to stay on the land.Entering or placing objects on the plaintiff’s land. Trespass land is therefore completed once a person wrongfully entered onto land in the possession of another even though no damage has been done.

Trespass to Land

A person who has possession over the land may institute an action for trespass.

Types of possession are :

Possession in fact and jus terti

Possession in accordance with the law

The right to immediate possession

Possession in fact and jus terti Exists when plaintiff has a right to use the

land as well as the ability to exclude others. Failure to furnish proof of actual possession may strengthen the claim of trespassing. (Senik v Hssan & Anor)

Possession in accordance with the law

Allows the holder to exclude all other claims, in his own name, and usually the holder is the landowner.

(Delaney v Smith)

The right to immediate possession

This means that the right to continue having possession, or to have possession if the person does not have possession at that time.

Sample of Cases – Trespass to Land

Turner vs Thorne. A package of material was placed at the plaintiff’s land due to wrong delivery.

Mc Donald vs Associated Fuels. The defendant sprays carbon monoxide into plaintiff’s accommodation.

Cont’dSouthport Corporation vs Esso Petroleum Ltd. The disposal of oil to the sea by the defendant and eventually the disposal of oil brought by the wind and come into the plaintiff’s area.

Westripp vs Baldock. The defendant put debris against the wall of the plaintiff’s house.

Trespass to Land – Building Work

Trespass is one of the contractor’s civil liabilities outside those embodied in his building contract are mainly concerned with the law of tort.

Three forms of trespass : trespass to person, trespass to goods and trespass to land.

Cont’dTrespass to land is the most commonly understood especially during the building work takes place.

It will arise by the execution of work. This may take place:

On the surface of the land

Under the surface

In the air space above the surface

Commonly recognized form of Trespass

Walking across the land of someone else, this must be avoided by the workmen engaged on the building unless a prior agreement has been reached.This can easily arise where the new building is on or very near to the boundary and the workman steps over the fence to gain access of his work.

Please Refer Figure 1:There are a number of trespass to land which can occur when the building is on the boundary.

E.g. The strip foundations. The wall must be built along the centre line of a strip foundation, but if the face of the wall is the boundary, the projecting part of the foundation is over the boundary and is trespassing on to the adjoining land.

Cont’d

Similarly, if the wall is finished with the projecting eaves or coping, this also would be a trespass.

Furthermore, if to build the wall, normal scaffolding is erected, this must be on the land of the adjoining owner and would constitute a trespass unless it was with his agreement.

Cont’d Trespass into the air space above the land

also occurs when a tower crane is carelessly sited or used so that its rotating jib passes over another person’s air space.

Overcome the TrespassThe permanent offence caused by the incorrect design of foundation eaves and other projections must be avoided at the design stage

Aggravation caused by thoughtless trespass during the construction period can easily be avoided by an advance meeting with the adjoining owner to seek to obtain his agreement to the proposed method of working.

Two Acts of Parliament – Builder’s Activities

Occupiers Liability Act 1957

Defective Premises Act 1972

When a contractor takes possession of a site for the purpose of carrying out his contract, he becomes the legal occupier of the property in exactly the same way as someone renting a house and, as such, carries responsibilities under the Occupiers Liability Act.

Two Acts of Parliament – Builder’s Activities

Occupiers Liability Act 1957

Defective Premises Act 1972

When a contractor takes possession of a site for the purpose of carrying out his contract, he becomes the legal occupier of the property in exactly the same way as someone renting a house and, as such, carries responsibilities under the Occupiers Liability Act.

Cont’dThese responsibilities can be summarized as

owing any visitor

lawfully on the premises,

a duty to take reasonable care so that the visitor will be reasonably safe in using the premises for the purpose for which he is permitted or invited to be there.

Cont’dIt does not impose any responsibilities towards trespassers

although a special case would probably be made if a child trespasser was injured due to the contractor’s negligence, but this cannot be turned the other way round, permitting the builder to leave parts of his site in a deliberately dangerous condition to deter or trap trespassers.

The Contractor should:Display suitable notices such as :

Trespassers will be prosecuted

Warning – keep out, dangerous

Erect and maintain secure fences to deter possible trespassers

Cont’dEliminate dangerous situations or make them safe :

Immobilize plant & vehicles

Fence or cover excavations

Remove or plank up ladders

Do not leave dangerous structures unsupported

Cont’dActively discourage children from coming on to the site.As we know, building sites are a great attraction to children and the contractor would be held liable for any accidents even if they are trespassing.The younger the child, the greater the liability.

WHO MAY CLAIM? POSSESSION IN FACT AND

JUS TERTI – HAS RIGHT TO USE AND TO EXCLUDE OTHERS

POSSESSION IN ACCORDANCE TO LAW

THE RIGHT TO CONTINUE POSSESSION

CO-OWNERS POSSESSION UNDER TOL

DEFENCES TO INTENTIONAL TORTS- TERSPASS

SELF-DEFENCE DEFENCE OF ANOTHER DEFENCE OF PROPERTY CONTROBUTORY

NEGLIGENCE NECESSITY (PRIVATE,

PUBLIC) MISTAKE INEVITABLE ACCIDENT CONSENT DISCIPLINE –

TEACHER/PARENT LAWFUL ARREST STATUTORY PROVISION JUS TERTII