What is trespass?

This article relates to suing or being sued for trespass to land. If you have a police matter, you should contact a criminal lawyer.

In Queensland, trespass refers to the interference with another person’s possession of property. That property can be either personal property including goods and possessions, for example, jewellery, cars and livestock (constituting trespass to chattels) or real property (constituting trespass to land). This article relates to trespass to land only.

Trespass in Queensland is considered a civil dispute or tort, which means you can sue and be sued for trespass. For a plaintiff to be successful, the court must be satisfied on the balance of probabilities that the trespass has occurred.

Trespass to land or unauthorised entry involves situations where a person (the defendant) acts in an intentional or negligent way that causes an unauthorised interference with another person’s (the plaintiff’s) possession of land.

Estimated reading time: 8 minutes

What are the elements of trespass to land?

Lawful possession

The plaintiff must have lawful possession of the land at the time of the interference, and that possession must be exclusive. For example, a land owner who has leased their property, and so, is out of possession, may not bring an action in trespass.

Direct interference

There must have been a direct interference with the land by the defendant without lawful authorisation. Any form of unauthorised entry, however slight, is trespass, whether express or implied.^[1] A person who enters land outside of the terms of a licence will be a trespasser.^[2]

Fault

There must have been a fault by the defendant. In essence, the interference must have been a voluntary act of the defendant without the consent or authorisation of the plaintiff in possession of the land.^[3]

Defences for trespass to land

If you have been accused of trespass to land in a civil context, there are certain defences that may be available to you. These include but are not limited to:

Necessity

There may be a defence to trespass if the inference occurred in circumstances where the interference was necessary, but consent could not reasonably be obtained.^[4] The defendant must show that there was an apparent imminent danger to person or property and that the defendant honestly believed on reasonable grounds that the act was necessary to preserve the person or property.^[5]

Consent

A defendant may be able to establish a defence to trespass if the interference occurred with the plaintiff’s consent. Consent can either be express or implied by conduct; however, it must be genuine and voluntary.^[6] The onus is on the defendant to establish that they entered the land with the plaintiff’s consent.^[7]

Implied licence

There is an implied licence that certain members of the public (such as police officers or fire fighters) can enter land for a legitimate purpose with authority awarded to them under laws and regulations, which thereby operates as a defence against trespass. Examples of this include entering land to question a witness to a crime, or in an emergency.^[8] However, the landholder can generally revoke the licence or consent at any time, in which case the entrant must leave within a reasonable time.^[9]

Inevitable accident

Inevitable accident is a defence that apply in circumstances where the defendant can show that their conduct was involuntary, and accordingly, the defendant is without fault.^[10] The onus on establishing this defence is on the defendant, who must show that their conduct was neither intentional nor negligent, and the interference with the land was a result of an inevitable accident.^[11]  An example is a driver suffering a blackout or a coughing fit.

Retention and re-entry of land

Where a plaintiff believes that a defendant is trespassing on the land, the plaintiff is allowed to use reasonable force to retain or re-enter the land in order to keep out or expel the defendant.^[12] However, if the defendant can establish that they have a better right to possession of the land than the plaintiff,^[13] or that the interference by the plaintiff was wrongful,^[14] the defendant may be able to establish a defence to a cause of action in trespass (e.g. a lessor trying to expel a lessee).^[15]

Jus Tertii

Jus Tertii means “the right of a third party”. A cause of action in trespass may fail if the defendant can show that a third party has better rights to the property than the plaintiff.^[16] The onus is on the defendant to establish this.^[17]  An example of where legal title to the land is found to belong to a third party and not the person claiming possession.

Incapacity

A defendant may be able to establish a defence to trespass is a minor who can establish their inability to understand the true nature of the act committed.^[18] This would seem to indicate that a defence based on incapacity would only cover young children up to about four years of age.^[19]

Mistake

Mistake is generally not a defence to intentional torts, including trespass. However, mistake may be a defence to a cause of action in trespass if the defendant can prove they acted with a mistaken belief, and the mistake was reasonable.^[20] The standard for what is considered “reasonable” is generally fairly difficult to meet.  An example of when mistake could be raised as a defence to trespass is where a person cuts down a tree and the tree falls on land the person believes they own, when that land is actually owned by a neighbour.

What should you do if someone has or is trespassing on your land?

If you believe a trespass has or is occurring, or you fear for your safety, you should initially call the police. The trespass may be a criminal offence. Whilst you may be able to use reasonable force to remove the trespasser, it is often advisable to have the police escort the person off the land to avoid disputes.

Once the person has been removed from the land, you may consider writing a “letter of demand” for compensation. You should ensure that the letter is written by a lawyer to avoid accidently extorting or unlawfully threatening the trespasser.

You may also consider writing a “cease and desist” letter to demand that the trespasser does not come onto your land again. This may assist in future civil and criminal matters to demonstrate that you expressly stated in writing that coming onto the land would constitute trespass, removing doubt about consent.

As a final step, if the offending party does not wish to comply with a letter, you can commence court action against the person or people responsible under the common law. You have six years to commence your legal action for civil trespass from the date of the trespass occurring, but acting quickly will assist in obtaining evidence from witnesses and having a good recollection of the events; the longer you wait the harder it may be to prove trespass.

Our experienced litigation lawyers can help you draft a letter, and take legal action against the person or people responsible.

Remedies for trespass to land

If you wish to bring a claim for trespass to chattel or land, there are various remedies that may be available to you. These include:

Compensatory damages

Compensatory damages apply if damage to land has been sustained. The aim for this type of damages is to put an injured person in the same situation they would have been had the trespass not been committed.^[21]

Nominal damages

Trespass is a tort of strict liability, which means that nominal damages (i.e. damages awarded to a person who has suffered a legal wrong) apply even where no actual damage has been suffered by the plaintiff because of the defendant’s trespass.^[22]

Exemplary damages

Exemplary damages, also referred to as punitive damages (i.e. damages awarded in order to punish the defendant and deterring others from engaging in similar conduct) may be awarded in certain circumstances involving trespass to land where the defendant has shown a blatant disregard for the rights of the plaintiff.^[23]

Injunctions

An injunction is a court order preventing a party from doing something, or alternatively, forcing a party to do a specific thing. This can include preventing a person from trespassing. To grant an injunction, the court must be satisfied the damages suffered by the plaintiff are significant (such as where the trespass is ongoing).^[24]

Trespass has some elements and features that are analogous to, or overlap with, the tort of nuisance. Commonly, a party who has suffered loss and damage will sue for both these causes of action.

For when you need help

If your property rights are being interfered with in any way, or you have been accused of interfering with another person’s property, call Gibbs Wright Litigation Lawyers today for a free and confidential initial consultation to discuss your legal rights and options.

References

1. Simpson v Bannerman (1932) 47 CLR 378. ↩
2. Barker v The Queen (1983) 153 CLR 338, 343-377. ↩
3. Public Transport Commission of NSW v Perry (1977) 137 CLR 107, 132. ↩
4. Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242. ↩
5. Proudman v Allen [1954] SASR 366. ↩
6. Pwllbach Colliery Co Ltd v Woodman [1915] AC 63; Lyttelton Times Co Ltd v Warners Ltd [1907] AC 476. ↩
7. Plenty v Dillon (1991) 171 CLR 635, 647. ↩
8. Halliday v Neville (1984) 155 CLR 1, 10. ↩
9. Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605, 631. ↩
10. McHale v Watson (1964) 111 CLR 384. ↩
11. Public Transport Commission (NSW) v Perry (1977) 137 CLR 107. ↩
12. Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605. ↩
13. Toyota Finance Australia Ltd v Dennis (2002) 58 NSWLR 101. ↩
14. Toyota Finance Australia Ltd v Dennis (2002) 58 NSWLR 101. ↩
15. Haniotis v Dimitriou [1983] 1 VR 498. ↩
16. Ryan v Simon George & Sons Pty Ltd & Anor [2017] QSC 247. ↩
17. Toyota Finance Australia Ltd v Dennis (2002) 58 NSWLR 101. ↩
18. McHale v Watson (1964) 111 CLR 384; Registrar of Titles (WA) v Spencer (1909) 9 CLR 641. ↩
19. Allen v Chadwich (2014) 120 SARS 350. ↩
20. Colwill v Reeves (1811) 2 Camp 575. ↩
21. Livingstone v Rawyards Coal Co (1880) 5 App Cas 25. ↩
22. TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82. ↩
23. Schumann v Abbott [1961] SARS 149; TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323. ↩