The owner of property has the right to use that property in any legal manner they wish, including keeping other individuals from entering their property. Trespassing, or trespass to land, occurs when an individual enters onto another individual’s land without their permission or without a legal right to be on the property.
Trespassing may be a crime, a civil tort, or both, depending on where the trespass occurs and what the laws are in the state. Trespassing can also occur when an individual enters another individual’s property without knowing it, but remains after being asked to leave.
Generally, in order to show that the defendant is liable for trespass to land, the plaintiff must show:
- The defendant entered onto the land;
- The land belonged to another individual;
- The defendant did not have consent to enter; and
It is important to note that simply entering onto another individual’s land may be enough for the plaintiff to bring a valid trespassing claim in many states. This may be the case even if the defendant does not cause any damages to the plaintiff or their property.
Trespass to land examples include:
- Hunting on property where the individual is not authorized;
- A construction company throwing debris onto neighboring property;
- An individual remaining in a restaurant after being asked to leave;
- An individual remaining in another individual’s home after being asked to leave; and
- Being in a place that closes at dark after hours, such as a park or graveyard.
- Damages (which will be nominal if there is only slight harm to land).
- An injunction to prevent further acts of trespass (at the discretion of
- the court).
- An action for the recovery of land if a person has been deprived of lawful
- possession of the land (formerly known as ejectment).
A licence is a permission to enter land and may be express, implied or contractual.
If a licensee exceeds their licence, or remains on the land after it has expired or been revoked, the licensee becomes a trespasser. Such a person is allowed a reasonable time in which to leave .
There is also the defence of estoppel by acquiescence, that is, consent which is expressed or implied from conduct, eg, inactivity or silence.
2. Rights of entry
A person may exercise a lawful right of entry onto land, for example:
A private right of way granted to the defendant;
A public right of way;
A right given by the common law, such as the right to abate a nuisance; and
A right of access given by statute, such as ss16-18 PACE 1984, the Access to
Neighbouring Land Act 1992 and s8 of the Party Wall Act etc. Act 1996.
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