Trespass to Land

Table of Contents

What is Trespass?

In Queensland, trespass refers to the interference with another person’s possession of property. That property can be either personal property (constituting Trespass to Chattels) or real property (constituting trespass to land).

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

What are the Elements of Trespass to Land?

In common law, the elements of trespass to land are as follows:

Lawful Possession

The interference must be with land over which the plaintiff has lawful possession. It is required that the plaintiff has exclusive possession of the land – not just ownership of the land.1 For example, the right to possession of land of a crown leaseholder may constitute a right of exclusive possession that supports a cause of action in trespass to land.2

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 (with the exception of it falling within the scope of a licence).3 A person who enters premises for a purpose other than those stipulated by the terms of a licence given to them to enter the premises will be a trespasser.4

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.5

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.

Defences for Trespass to Land

If you have been accused of trespass to land, there are certain defences that may be available to you, including but 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.6 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 for the preservation of the person or property.7

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.8 The onus is on the defendant to establish that they entered the land with the plaintiff’s consent.9

Implied Licence

There is an implied licence that certain members of the public (such as police officers or the fire department) can enter land for a legitimate purpose with authority awarded to them under applicable laws and regulations. Examples of this may be initiating contact with an occupier or possessor of a dwelling for a legitimate purpose (e.g. questioning the occupant about a criminal matter to which they were a witness) or in cases of emergency.10 However, the landholder can generally revoke the licence or consent at any time, in which case the entrant must leave within a reasonable time.11

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.12 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.13

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.14 The onus is on the defendant to establish that a better right to possession or occupation is held by a third party in order for the defence to succeed.15

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.16 This would seem to indicate that a defence based on incapacity would only cover young children up to about four years of age.17

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.18 However, if the defendant can establish that they have a better right to possession of the land than the plaintiff,19 or that the interference by the plaintiff was wrongful,20 the defendant may be able to establish a defence to a cause of action in trespass (e.g. a lessor attempting to expel a lessee).21

Mistake

Mistake is generally not a defence to intentional torts. However, mistake may be a defence to a cause of action in trespass if the defendant can prove that he or she acted with a mistaken belief, and the mistake was reasonable.22 The standard for what is considered ‘reasonable’ is generally fairly difficult to meet.

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, including:

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 as they would have been in had the trespass not been committed.23

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.24

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 contumelious disregard of the rights of the plaintiff.25

Injunctions

An injunction is a Court order preventing a party from doing something, or alternatively, forcing a party to do a specific thing. In order for the Court to grant an injunction, the Court must be satisfied that the damages suffered by the plaintiff are significant (such as where the trespass is ongoing).26

For when you need Assistance

If your property rights are being interfered with in any way, or you have been accused on 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.

[1] Newington v Windeyer (1985) 3 NSWLR 555; Emprja Pty Ltd v Red Engine Group Pty Ltd [2017] QSC 33 [27].

[2] Emprja Pty Ltd v Red Engine Group Pty Ltd [2017] QSC 33 [27].

[3] Simpson v Bannerman (1932) 47 CLR 378.

[4] Barker v The Queen (1983) 153 CLR 338, 343-377.

[5] Public Transport Commission of NSW v Perry (1977) 137 CLR 107, 132.

[6] Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242.

[7] Proudman v Allen [1954] SASR 366.

[8] Pwllbach Colliery Co Ltd v Woodman [1915] AC 63; Lyttelton Times Co Ltd v Warners Ltd [1907] AC 476.

[9] Plenty v Dillon (1991) 171 CLR 635, 647.

[10] Halliday v Neville (1984) 155 CLR 1, 10.

[11] Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605, 631.

[12] McHale v Watson (1964) 111 CLR 384.

[13] Public Transport Commission (NSW) v Perry (1977) 137 CLR 107.

[14] Ryan v Simon George & Sons Pty Ltd & Anor [2017] QSC 247.

[15] Toyota Finance Australia Ltd v Dennis (2002) 58 NSWLR 101.

[16] McHale v Watson (1964) 111 CLR 384; Registrar of Titles (WA) v Spencer (1909) 9 CLR 641.

[17] Allen v Chadwich (2014) 120 SARS 350.

[18] Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605.

[19] Toyota Finance Australia Ltd v Dennis (2002) 58 NSWLR 101.

[20] Toyota Finance Australia Ltd v Dennis (2002) 58 NSWLR 101.

[21] Haniotis v Dimitriou [1983] 1 VR 498.

[22] Colwill v Reeves (1811) 2 Camp 575.

[23] Livingstone v Rawyards Coal Co (1880) 5 App Cas 25.

[24] TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82.

[25] Schumann v Abbott [1961] SARS 149; TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323.

[26] Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287.

The content of this publication is intended as general commentary only and may not be suitable or applicable to your personal circumstances. It is not intended to replace independent legal advice. You can contact us at our Brisbane Office for a free consultation on a range of litigation matters on (07) 3088 6364.

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