The law of trespass in relation to land is designed to protect an individual from unlawful interference by somebody else with his land.
Trespassing on to somebody else’s land without a lawful excuse is an offence itself and is one of the rare forms of tort claims in which a claimant can bring a claim without having to prove any damage has occurred. However, it is not a criminal offence and so property owners must bring their claim in the civil courts.
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How to bring a trespass claim
In order to bring a claim for trespass there must be direct and unjustifiable interference with somebody’s land. This can occur in a number of ways, with the most common example being jumping over a fence to retrieve a football, but can be as remote as interference from a low-flying aircraft so long as it is flying below a reasonable height.
A seemingly obvious point, but one which has been the subject of several legal battles, is the fact that only a person in possession of the land is able to bring a claim for trespass. Therefore, if you merely have a licence to occupy the property you cannot bring a claim for trespass.
More importantly, a common problem is the fact that a landlord cannot bring a claim for trespass when he has let out the property to a tenant. The tenant, by definition of a lease, will be in possession of the property and so it is the tenant that will be able to bring the claim for trespass.
Defences to trespass
Subject to the defences which we shall now address, it is quite simple to bring a claim for trespass; all that is needed is to show that there has been a direct and unjustifiable interference with the land and that the individual bringing the claim is in possession of the land.
There are three main defences to trespass and they are as follows:
1. Necessity: In order to assume the defence of necessity there must be an actual or reasonably perceived danger in relation to the course of action taken by the ‘trespasser’. A common example is if one person swings their car in order to avoid a crash and ends up on somebody else’s land. In theory they are trespassing as they are making a direct and unjustifiable interference with the land; they may also not have been in danger from the oncoming vehicle. However, there was certainly a perceived danger and so there will be no trespass. (However, it may be that if they caused damage there will be a different type of claim.)
2. Licence: If you invite somebody onto your land then you have given them an implied licence and they are not therefore a trespasser. There are certain times when you will have given someone permission to enter your land, but only a certain part of it, and for a certain reason. Therefore, in these cases a claim for trespass is still possible.
3. Legal justification: A clear example of legal justification is when a police officer enters your land under an appropriate warrant. It is quite clear that certain emergency services should be allowed onto your land to carry out activities which are in the public good.
Under the Serious Organised Crime and Police Act 2005, it is an offence to trespass on Crown land (for example the Houses of Parliament, Buckingham Palace, Ministry of Defence sites) and doing so will result in a maximum fine of £5,000 and a prison sentence of up to six months.
Also, trespassing on National Rail property is an offence which is punishable by a £1,000 fine.
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