Trespass Issues

Nature of Trespass

Trespass covers personal entry onto land and causing anything directly to enter into or come in contact with the land, without consent or other adequate justification. The consequences of trespass may vary considerably. On the one end of the spectrum are trespasses involving usurpation of the true owner in possession, destruction and demolition of buildings on the land. On the other end are technical trespasses, involving the slightest unintentional crossing of the boundary.

Any entry onto the property of another is a trespass. The claim can be made by any person with lawful rights of occupation of land. This may be the freehold holder,  but may equally be a short-term tenant or licensee. This slightest entry on land without justification, would be a trespass.

It is also a trespass to cause an object to pass the boundary of another person’s land.  It is enough to touch or hit the boundary. This would include throwing stones onto land or causing animals to run onto land. The action must be direct and intentional in the sense of being voluntary and conscious. An overgrowing tree crossing the boundary would not constitute trespass.

If a physical intrusion has occurred, the onus is on the defendant to prove that his actions were neither intentional, reckless or negligent. If he did not act voluntarily, such as where a person has been pushed or thrown into the property or where he has sleepwalked, it would appear that he does not commit any trespass.

The Constitution protects the inviolability of a citizen’s dwelling house.

There is a right to sue for trespass, even though no damage or loss has been actually suffered damage.

A person can become a trespasser if he stays on land after the consent to enter has ceased. There may be a continuing trespass if a person refuses to leave or remove the offending item.

There is a right to use reasonable force to remove a trespasser.

Intrusion onto Land

Land includes the airspace above and the subsoil below ground. Entry or intrusion into land above or below the ground will constitute a trespass. At one time, ownership of land was presumed to go downward and upwards indefinitely. However, the modern view is that land rights are limited to the depth or height, reasonably necessary for the ordinary use and enjoyment of land. There is a statutory exemption for overflying aircraft.

Trespass may involve an intrusion at ground level, below ground or above ground. Technically, an intrusion into airspace, at least up to height necessary for the ordinary use and enjoyment of the land and structures on it, constitute trespass. There is no defined height at which property rights cease.

Flying a kite or a drone over property is likely to constitute trespass. Overflight of aeroplanes will usually be at a height greatly in excess of that necessary for the ordinary use and enjoyment of the property. In any event, the Air Transport legislation provides that no action shall exist for trespass or nuisance by reason of the overflight of aircraft at a height which is in accordance with ordinary incidence of flight.

Protects Possession I

Trespass is an interference with the possession of land. It is the person entitled to the exclusive possession of the land, who is entitled to bring the action. A tenant may be able to sue a landlord who attempts to enter land in excess of his rights under his lease. A person who enters land as a so-called licensee or a guest, would not generally have sufficient control or possession to sue a third party for trespass.

A landlord may not generally sue during the currency of a lease. The right to occupation and the right to bring a claim for trespass lies with the tenant. Where a trespasser causes actual damage to property, the landlord may claim compensation for the loss or devaluation of his future expectant interest, after the termination of the lease.

A squatter may make a claim of trespass even though he does not have title to the property. The trespasser may not invoke the rights of the true owner against the squatter. This relativity of ownership and possession is a fundamental principle of land law and trespass.

Protects Possession II

Trespass is primarily interference with possession, rather than with ownership. Accordingly, the person with the lowest estate or interest in the property, which of necessity carries exclusive possession,  may maintain a trespass action. Accordingly, a tenant at will may maintain an action. In contrast, a licence holder does not have a right of exclusive possession and may not maintain trespass. A person entitled to an easement may not maintain trespass but has a separate nuisance type action for interference with those rights.

A tenant may sue and maintain an action for trespass, against any person, including his landlord,,  relative to whom he has a right to immediate exclusive possession. A person who is in possession has better rights against all others, except those who prove a better title. Accordingly, even a squatter may maintain trespass against third parties but not against the “true owner”, with a better title to the land. The true owner may maintain the action for trespass against the owner.

What constitutes actual possession is a question of fact in the circumstances. It requires physical control and intention. See generally the sections on property law as to what constitutes possession.

Where permanent damage is done to the land, persons who have an interest in the land, but are not in possession may recover compensation for damage done to his interest. For example, a landlord may sue in trespass for damages, for permanent damage done to the land. This may be in addition to the tenant’s claim for his shorter-term loss.

Where a person with a better title recovers or enters possession, he is deemed to have obtained possession retrospectively from the moment when his right arose. This is trespass by relation. In this case, that person may take action for trespass, in respect of the period while he was out of physical possession.

Following from the above principle, it is not a defence to trespass to impugn the title of the person in possession, on the basis of a third party’ better title.  The person in possession maintain all the rights of the “true owner”, including the right to take proceedings for possession,  against all parties except a person with better title.

There is no reduction of damages where the claimant is a squatter. However, the squatter may be obliged to account for damages recovered to a person with a better title, if that third party latter takes action against him.

Picketing

Trespass to the sub-soil may arise in picketing cases. Injunctions and court orders restraining picketing are usually based on misuse of the general rights of the public to pass and re-pass over the subsoil, notionally owned by the adjoining owner. Excessive picketing, gathering in numbers and standing outside the premises, is likely to be in excess of the permitted use of the highway, relative to the notional dedication by the owner.

If a person uses the highway to watch, observe and interfere with the owner in his use of the adjoining land, it is likely to constitute trespass to the subsoil. Picketing in this context may be lawful subject to compliance with the terms and conditions of the Industrial Relations Act.

Arguments have been made that picketing and attending at or near premises for the purpose of peaceful communication raises issues of free speech. If there is a complete prohibition on access for the purpose of communication, it may infringe freedoms protected by the European Convention on Human Rights.

This protection is unlikely to be breached,  in the vast majority of cases. The Industrial Relations Act allows attendance at or near the approaches to places where the picketer’s works or where his employer carries on business, for the purposes permitted.

Exceeding the Terms of Consent

A person may become a trespasser by exceeding the terms of the consent on which he has entered premises. He may exceed consent, by going into parts of the premises which are outside the scope of the express or implied consent of the landowner. The person may exceed consent by doing things in relation to the land which exceeds the terms of the consent.

In a famous involving the finding of the Derrynaflan Chalice, the finders, by digging ground near a national monument was patently outside the terms of the implied consent on which they entered the land. Their entry was deemed to constitute trespass ab initio, as the finders entered under a false basis, intending to exceed the terms of the consent so that they were trespassers from the outset and not just from the point at which they exceed the consent.

Similar considerations apply in respect of the defective warrants or police officers or public officials who act without lawful authority.

A person who enters land with the intention of committing a crime is a trespasser, as and from the moment of entry. In case of dwelling house, the crime of burglary may be committed where a person enters a dwelling house, intending to steal or do certain other criminal acts.

Retrospectively a Trespasser

Traditionally, the principle of trespasser ab initio (from the outset) applied in the case of entry in excess of public officer’s powers, such as without a warrant where required, in excess of a common law power or in breach of the terms of a warrant. At common law,  the State officer was deemed trespasser as and from the moment of entry and was deemed retrospectively to be a trespasser as and from the moment of entry.

The principle of trespasser ab initio is ancient, but it is well established and plays a useful function. A person may be a trespasser when he enters a property with the intention to commit a crime or steal. Where a person enters the dwelling house with such intention, he may be guilty of burglary.

The Irish courts have expanded the principle of trespass ab initio to private cases. In the above case, the Supreme Court held that where the finders entered the land with consent, but intended to and did exceed their authority by excavating, they were trespassers ab initio (retrospectively).

It is trespass to place something directly on the land. This may be a natural or artificial thing (or chattel). It is trespass to permit to grow a creeper onto another’s wall or lean a ladder against it. It is a trespass to directly cause another person to intrude on the land, such as by chasing him or driving him on to the land.

Direct v Indirect Interference

It is an ancient and fundamental aspect of trespass is that its interference with the claimant’s land is direct, rather than indirect or consequential. It must have an immediate and direct effect. It is consequential where there is an intervening factor. Accordingly, trespass is unlikely to cover inducing or persuading a person to enter land or to do things which induce him to go on the land, as it lacks the requisite directness.

It may be difficult to draw the line between direct and indirect/consequential injury or damage, for the purpose of trespass. The distinction between allowing or causing water or sewage to flow onto land or allowing it to accumulate such that it escapes and goes onto a land may be fine, in marginal cases.

The spreading of roots and tree branches has been regarded as indirect or consequential, even if the person plants at the boundary and stands by and does nothing to stop the intrusion.  The intrusion of smells, noise and fumes not regarded as trespass, but are subject to the law of nuisance.

Continuing Liability Without Damages

A feature of trespass is that damage need not be proved. It is said to be actionable per se (in itself). No actual financial loss need be shown. However, the award in the case of a technical trespass may be nominal and it may uneconomic to litigate.

Some trespasses are continuing, whereas others are one-off in nature. There is a continuing trespass where the person or thing remains on the land and is not removed. Where the trespass causes damage, he is liable once only in respect of that damage, even though it endures in some sense.

In the case of continuing trespass, more than one action may be taken. Further action may be taken if the trespass is not remedied after the first action. The distinction can difficult to draw in some circumstances. If the claimant refuses entry in order to remedy a continuing trespass,  he may be precluded from taking further action.

The classic distinction is between the construction of the wall, constituting a continuing trespass and the cutting down of a tree, which is a single act of trespass. In the latter case, the law does not require reinstatement. Although technically a tree may be replanted, it is not the same tree.

It appears that the distinction is between that which is continuing and that which can be removed and undone and that which constitutes a single act of damage, which although it might be remedied cannot be undone. A continuing trespass involves a continuing remediable intrusion as opposed to a single action, which although can be remedied, has caused damage, principally on that initial one-off occasion. Compensation may be granted, but reinstatement is not required.