Trespass is the unlawful presence of a person on land belonging or in possession of another including:
- wrongfully setting foot or riding or driving over it;
- destroying anything which is permanently affixed to it;
- placing or fixing anything in it or on it;
- taking possession of it or expelling the person who is in possession;
- unlawfully remaining after an authority expires;
- using it unlawfully for any purpose other than that which was lawfully granted such as a public or private right of way;
- wrongfully taking minerals from it; and
- invading the airspace above it.
For there to be trespass it must be to real and corporeal property (an example of this is land or building). It is important to note that having the benefit of an easement does not give there an automatic right to sue for trespass, as long as it does not grant exclusive possession.
If someone intends to enter the land they cannot defend against a claim for trespass on the basis that they did so by mistake or inadvertently. However, if they acted involuntarily then they will not be liable.
In instances where there is no direct intrusion on another person’s property then there is no liability in trespass however there may be in nuisance.
The person in possession or deemed to be in possession can make a claim as trespass is an injury to a possessory right which belongs to them.
Actual possession is simply a matter of fact and there must be both exclusive possession and an intention to possess.
The owner of the land cannot sue for trespass if another person is in lawful possession of the land at the time of the trespass.
If the tenant is in possession of the land then they would have a right to sue for trespass. However, if the trespass is not temporary, but causes injury to the reversion, then the reversioner (usually the landlord) can sue for the injury even though they cannot bring an action for trespass.
A licensee generally cannot maintain a claim for trespass. However, a licensee with a contractual right to occupy the land can bring a claim against a trespasser if it is necessary to give effect to their contractual rights.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 criminalises residential squatting. The offence applies where:
- there is a person in a residential building as a trespasser and they entered it as a trespasser;
- the person who is trespassing knows or ought to have known that they were a trespasser; and
- the trespasser is living in the building or intends to live their for any period of time.
There is a distinction to be made between tenants who are holding over at the end of a lease or licence (even if they leave and re-enter) as they are not trespassing unless demand has been made.
The definition of residential building is intentionally wide and includes any structure or part of a structure, including temporary or moveable structures.
Although the provisions came into force on 1 September 2012 they are retrospective and therefore all residential squatters are caught by the legislation.