Initially, trespass was a remedy available to the king against international aggression. With the passage of the time, its application extended to the maintenance of public order i.e. it was used as a remedy to settle boundary disputes, easement issues, etc.
Then came a time when trespass was incorporated in the law of torts as a remedy available to any citizen of the state. Trespass to land is one of the most ancient provisions under torts, and one of the most basic. It sits at the root of our economy. While we might be able to imagine a world without the torts of assault or intentional infliction of emotional distress, it is hard to imagine a society without a private right to take others to court for coming and going as they please on your land. Just because trespass to land is old, and just because respect for private property is thoroughly ingrained in our culture, do not make the mistake of thinking trespass to land has little relevance to modern practice. Unauthorized incursions on land happen all the time. And trespass to land is a powerful tort, working against seemingly blameless defendants in ways that would make negligence doctrine blanch. Consent is, of course, a defense. Many trespass-to-land cases involve a question of whether the consent was exceeded.
Land is much more than merely the physical soil. The rights to all natural resources on the land have been granted to the owner of the land. It includes any building and fixture attached to the land as well as the land itself, the airspace above, and the ground beneath to the center of the earth. The Latin maxim “cuius est solum eius est usque ad coelom at ad inferos” is often used to describe the possession of land. Roughly translated, this implies “whoever possesses the land also possesses the sky above it to the highest heavens and the earth beneath it to the greatest depth”. This maxim cannot be used for the modern world but it was used in the past.
Overall, Trespass to land can be described as anyone who in some fashion interferes with someone’s possessory rights in property or enters upon someone’s land without permission or privilege commits a trespass and is potentially responsible for a minimum of nominal damages even if his motive may be beyond reproach.
Trespass to land can generally be defined as immediate physical interference with the possession of land without the legal authority to do so. This tort developed to guard an individual’s possession of land, then only an individual who has exclusive possession of land may sue. Thus, for example, it is a trespass to land if a person sits on a fence, or throws rubbish to another person’s land.
Black’s Law Dictionary defines trespassing as an unlawful act committed against the person or property of another person; in particular, unlawful entry into the real property of another person. Trespass means the wrongful disturbance of possession of land or goods of another person. A person who intentionally and without consent enters another person’s property is a trespasser. It signifies an infringement or infringement of a right.
Elements of Trespass to Land
A plaintiff can file a prima facie case for trespass to land by showing that:
- The defendant did it intentionally
- He/She caused an intrusion, either by entry onto or failure to leave or remove from,
- To the plaintiff’s real property.
The pleading requirements for the tort of trespass to land can be summed up as follows:
1. Plaintiff’s Real Property
Instead of taking the elements in order, it is necessary to talk first about the last element – what constitutes the plaintiff’s real property. Understanding this is a prerequisite to understanding anything else about this tort. To begin with, it is important to understand that the plaintiff does not need to be the owner of the land in question. The plaintiff needs only be the possessor of the land. A couple renting a house can sue for trespass to land, even though they only have a lease and no title. In fact, the landlord of leased property might not have the standing to sue for trespass – at least where there is no damage to the landlord’s interest.
Moreover, you need to think of the word “land” broadly. What we are talking about here is not soil, but realty, or real property. Real property is the land and everything affixed to it, including improvements, buildings, and all fixtures. Real property can be divided vertically as well as horizontally, an individual apartment on an upper story can be “land” for the purposes of trespass to land.
As an example, imagine a multi-story warehouse converted into full-floor loft apartments. Suppose Ram is the tenant-lessee of the third-floor loft, and Shyam is the tenant of the fourth-floor loft. If Ram ventures up to the fourth-floor loft without Ram’s permission, Ram has committed a trespass, even though her GPS coordinates have never taken his outside the latitudes and longitudes of his apartment.
Assuming it’s not divided up vertically (as with a multi-story building), the property interest in a plot of land extends down into the subsurface of the Earth and upward into the sky. Thus, an undivided square lot defines a 3-D real property interest having the shape of an inverted four-sided pyramid, with the point at the center of the Earth, and the outward sloping sides extending into the heavens. If some good-hearted kids are playing a game of catch with a baseball, and if they throw the ball over a corner of the lot of a neighbor, they are liable to that neighbor for trespass to land.
In simple words, the claimant need not own the land, but must be in possession of it. Possession means to exclude others from the land and it must exist at the time the trespass was committed.
You may find that the intent requirement for trespass to land is unintuitive. As with the other intentional torts, the intent required is the intent to act with the purpose or with the substantial certainty of bringing about some consequence. But that consequence is quite different from other intentional torts. The intent for trespass to land needs only to be to cause the movement that intrudes on the plaintiff’s land. Put another way, there does not need to be an intent to trespass, just an intent to affect the action that constitutes the trespass.
Consider an example; Suppose the defendant intends to place a small wire-and-plastic marking flag in the defendant’s ground. But, because of the defendant’s innocent misunderstanding of property boundaries, the piece of ground into which the defendant plants the flag happens to be on the plaintiff’s property. This constitutes a trespass to land. The intent requirement is satisfied. It does not matter that the defendant was mistaken. Further, it does not matter if the defendant is non-negligent in entering the plaintiff’s land. In fact, the defendant could have consulted all the documents in the county hall of records and used state-of-the-art GPS to map out a route. All that is required for intent is that the defendant intended to place the object where it was actually placed. If that happens to be a corner of land belonging to the plaintiff, then the defendant has committed trespass to land.
Contrast this “intent” with the intent required for battery, unless some doctrine of transferred intent applied, the intent required for battery is the intent to affect a battery. If the defendant intends to kick a box – but does not know a small child is inside, there is no battery. But if the defendant intends to kick a fencepost – not knowing that the fence post is on someone else’s land – then the defendant is liable for trespass to land. The defendant does not have to intend to trespass, just intend the action that constitutes the trespass.
The intent required for trespass to land is a low bar but it is not non-existent. Even under the doctrine’s expansive view of intent, not every entry will be actionable. Suppose the defendant is pushed by someone else on to the plaintiff’s land. There is no intent for a trespass action. Similarly, suppose the defendant stumbles and falls onto the plaintiff’s land. There is no trespass to land here either, since the defendant did not intent the action that constitutes trespass.
Assuming in a tweaked version of our hypothetical of kids, the kids are playing catch with a baseball. Suppose the kids are trying to come as close as possible without invading the defendant’s airspace. Unless their aim was bad enough that they were substantially certain they would miss and pierce the invisible plane of the property boundary, there is no intent sufficient for a trespass-to-land action.
Finally, we need to note the applicability of the transferred intent doctrine. Under the older, more traditional view of transferred intent, trespass to land is eligible for the application of transferred intent doctrine among the torts of battery, assault, false imprisonment, and trespass to chattels.
An actionable entry on land may be made by the defendant personally. Alternatively, the defendant can be liable by inducing a third person to enter or by causing an object to enter. An “entry” does not need to be a transit of the border of the plaintiff’s property. Suppose the defendant is on the plaintiff’s property with the plaintiff’s permission. There is no trespass to land at this point. However, the defendant could accomplish a trespass by interacting with the land or fixtures in a way that is beyond the scope of that permission.
Failure to Leave or Remove
The trespass need not be an affirmative act. It can be an omission as well. A guest who refuses to leave when asked commits a trespass by remaining. And some friends who have parked a boat in your driveway commit a trespass if, once their welcome is worn out, they do not return to drive the boat trailer away.
Damages and Scope of Recovery
If the trespasser does no damage, the plaintiff can still recover nominal damages. If the trespasser does cause damage, personal injury, property damage, or even mental distress, the plaintiff can recover compensatory damages on that basis. The scope of recoverable damages in a trespass to land case can be breathtaking. Any damages caused by the trespasser, even if highly unpredictable and even if the trespasser was exercising due care, can be recovered. This is quite extraordinary when compared to the negligence cause of action.
In negligence, the requirement of a breach of the duty of care and the application of proximate causation doctrine would foreclose many damages claims that are perfectly viable in a trespass-to-land case. Suppose an innocent trespasser, with a reasonable belief she or he is not trespassing, consistently undertakes every reasonable precaution while on the plaintiff’s land, but causes some damage in an utterly unforeseeable manner. The trespass-to-land tort can be used to make the defendant liable for the full extent of the damage.
Damages for Trespass to Land
The plaintiff may seek damages, or an injunction, or both. If the trespass is continuing, an application for an injunction can be made but it will have to be proven that the trespasser is in unlawful possession or use of the land. Where the trespass is trivial, damages may be nominal and an injunction refused.
An owner or tenant has a right to compensation for the injury caused by the trespass. Depending on the nature of the trespass, the aggrievd party will be able to recover for the subsequent damage:
- Loss of market value
- Costs of restoration
- Loss of use of the property
- Physical injury to the person or the land
- Emotional distress
- Discomfort and annoyance
An injunction is usually the most effective way to stop repeated trespassing. Many state courts have forms to assist in the drafting of an injunction application. After the issuance of an injunction, the court will order the trespass to prevent it. If the offending conduct continues, the police will enforce the injunction, and the complainant may file for contempt of court.
What constitutes authorised entry to land?
If the alleged trespasser can prove they have the authority to be on the land in question, he/she can defend a claim against them for trespass. Permission to enter the land can be granted in a number of ways, including:
- Express permission given by the plaintiff, whether verbal or written, such as in the form of a license or a ticket.
- The legal right of way, such as an easement over the land.
- Public rights of way.
However, where there is an authorised right to be on the land, that right must not be exceeded or abused, otherwise, a trespass may have been committed. For instance, if an individual has the right to use a specific field for exercising horses, they must not go outside of that area. If a license permits someone to be on the premises until 10 pm but they remain on site after 10 pm, they will be trespassing. If a theatergoer is asked to leave the theatre because of their behaviour, they will be trespassing if they refuse to leave.
Where the permission is revoked, authorisation to be on the land is withdrawn. If the licensee still remains on the property thereafter, he/she may be trespassing.
Sometimes, it is necessary to go onto someone else’s land without authorisation. Necessity is a defence to trespass to land. For example, the police and other law enforcement authorities have the power to go onto land in the lawful execution of their duties.
Besides, under the Access to Neighbouring Land Act 1992, an occupier can make an application to the court for an access order to enable them to enter the adjoining/adjacent land to carry out repairs. The court will not, however, make the order where the adjoining occupier would suffer interference with, or disturbance with the full use or enjoyment of his land, or would suffer hardship to such a degree that it would not be reasonable to grant the order. The court may require the applicant to pay compensation for any loss or damage or any loss of privacy or other substantial inconvenience.
Since 2012, it is a criminal offence to trespass in residential property, thus, effectively criminalising squatting. Under Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, it is an offence for someone to be in a residential building as a trespasser, having entered as a trespasser; and that person knows or ought to know that they are a trespasser; they are living in the building or intend to live there for any period.
The police have powers to permit forced entry and arrest for this offence. On conviction, an individual may be jailed for up to 51 weeks, or receive a fine up to level 5.
Important case laws
· Basely v. Clarkson
When the defendant mowed his land, he mistakenly crossed the boundary and mowed the land of his neighbor, believing it was his land. The defendant’s plea of mistake in claiming trespass to land failed because his act of cutting grass was intentional even though he made a mistake as to where the boundary was. However, if the entry is proven to be involuntary then it is not a trespass.
· Smith v. Stone
If someone else throws a person on the land of someone else, i.e. his entry is unintentional then he will not be liable. There is no act of entry by the defendant in such a situation. It is a general presumption that a person who owns the surface of land owns all the underlying strata. Thus, at the instance of the owner of the surface, an entry beneath the surface at whatever depth is an actionable trespass. But in some cases, the underlying strata may be in the possession of a different person.
· Gokak Patel Volkart Ltd. v. Dundayya Gurushiddaiah Hiremath
Although entry into the property may be legal, therefore, if possession continues even after permission has been given, it may amount to trespass ab initio. The corresponding concept of continuity of a civil mistake can be found in Tort Law. Trespass in torts can be continued. Again, if the entry was legal but is subsequently abused and continued after the permission has been determined, the infringement may be ab initio.
· Minister of Health v. Bellotti
A licensee whose license has been terminated or is extinguished by expiry may be sued as a trespasser if, upon request, he does not vacate and a reasonable time has elapsed.
Trespass to land occurs where an individual directly enters upon another’s land without permission, or remains upon the land, or places or projects any object upon the land. The important element of trespass to land is; (1) Intent: the defendant must either desire or knowledge to a substantial certainty that he or she is going to interfere with another’s right of possession. An honest but mistaken belief on the ownership of the property is irrelevant, as there is intent to enter the land of another. (2) Entry: entering of another’s land; enters the land, refuses to go away from the land after he or she was invited onto the land, causes another person to enter the land, causes an object to enter the land, or fails to remove his personal property from the land. (3) Land: it could also be anything attached to the land (buildings, trees, flag poles, etc.)
Frequently Asked Question’s
- What is trespass to land?
- What are the elements of trespass to land?
- What are the damages and remedies for it?
- Explain with case laws, the scope of the tort of trespass to land.
- What are the exceptions to trespass to land?