Trespass

Nature of Trespass

Trespass must be direct. It is constituted by direct action against land. Throwing an object on to land constitutes trespass. In contrast, permitting the growth of branches and roots over the boundary line is regarded as indirect, and therefore not trespass.  Such incursions may be treated as nuisances.

A person may commit a trespass by causing an object to enter the land of another.  The slightest touching or infringement onto a property is enough. Putting or setting something in place, that will enter on the land by the lapse of time, would constitute trespass.  Similarly, chasing animals onto land constitutes trespass.

Trespasses may be claimed without proof of damage.  However, a technical trespass may merit nominal damages only. Actual loss must be shown in order for any significant level of damages by way of compensation to be granted.

A trespass may be continuing, if the incursion continues. If the wrongdoer offers to remedy the trespass, but consent to enter is refused, it is likely that continuing liability will cease.

Trespasses are “strict” torts / civil wrongs. It is not necessary to prove that the trespasser acted with intent or even negligence in his actions.  However, the action must be at least, voluntary.  If a person is pushed onto the land of another, he’s not responsible in trespass.  However, if he enters land mistakenly, thinking it to be his own, he may still be liable in trespass.

Trespass to Land

The slightest entry onto to the land of another constitutes trespass. The Constitution protects the inviolability of a citizen’s dwelling house. There is a right to sue for a trespass, even though no damage or loss has been suffered damage.

If persons or objects are on land and the person refuse to move or to remove the objects concerned, there is a continuing trespass.

Involuntary entry onto land does not constitute trespass. The onus is on the defendant to show that his actions are neither negligent not intentional. Involuntary entry may arise where a person is physically carried unto the land of another.

At common law, a person’s ownership of land extended upwards and downwards without limit. However, it is now likely to be limited to a reasonable depth below and height above. Trespass will protect against an entry that is reasonably necessary for the ordinary use and enjoyment of a property. Statute clarifies the overflying craft are immune form trespass, even if a common law trespass action could arise.

Trespass is an interference with the possession of land. A person who is entitled to the exclusive possession of land is entitled to bring the action. He entitlement must be to the immediate possession of the land.

There is a form of action similar to trespass, for interference with easements. The person entitled to the easement may bring the action for interference with servitudes.

Trespass protects rights in property. The law of trespass applies to all land and buildings. The slightest infringement of a person or thing onto another’s land without express or implied consent, constitutes trespass.  There will not necessarily be a right to substantial compensation for minor or technical trespasses.

Tort Against Possession

In order to maintain an action for trespass, the claimant must have possession of the land. Use of the land without possession is not sufficient.  Interference with easement constitutes a separate civil wrong, namely interference with servitudes,  which is akin to nuisance.

A person who has possession of the land may maintain trespass even though he has no title to it.  However, where greater or permanent damage is caused to the land; a person with the title who is not in possession, such as the landlord may claim for damage to his interest. This is separate from the liability to the tenant.

The person who has entered land may not challenge the entitlement of the possessor to maintain trespass against him.  If, however, he enters on behalf of or with the consent of the person entitled to possession, he may set up that person’s right. This follows from the basic principle of relativity in actions to recover possession of land and goods.

A landlord may not generally sue for trespass during the curling a leave. the right oasis of occupation eyes with their tennis

A person may assert a claim for trespass even though he does not have title to the property. A squatter in possession may maintain an action in trespass against all person save those with a better title.

Legal Powers to Enter

The Constitution protects the inviolability of the dwelling-house. Entry into a dwelling house is permissible, only where permitted by laws. This provision requires certain minimum protections, where State authorities seek to enter a dwellinghouse in the exercise of powers.  Statute law requires a search warrant or other process, before lawful entry. Common law may allow entry in limited circumstances.

There are many instances where public and local parties have powers to enter land.  In some cases, a warrant issued by a court is necessary. It usually required for entry into a dwellinghouse.  In the case of other lands, there may be powers to enter without a warrant   Typically, in the case of regulated businesses, the Garda Siochana or other the relevant regulator’s authorised officers, have powers to enter business premises and inspect for the purpose of their regulatory functions.

It is presumed at common law that a property owner gives implied authority to the police force to enter the forecourt of a premises, in order to enforce the law or to prevent a breach of the peace. The Criminal Law Act 1997 provides powers of Gardai to enter premises for the purpose of making an arrest.

Trespass to Subsoil

Landowners are presumed to retain technical ownership of the highway in front of their property.  They are presumed to retain title to the subsoil.  The use of this area, in front of the property other than for the purpose of passage and other lawful use of the highway, may be a trespass to the rights of the adjoining owner, so-called trespass to the sub-soil. This follows from the use being inconsistent with the permitted use of the road as a highway.

Trespass to the subsoil may arise in the context of picketing.  An assembly of persons outside a property for protest or other purposes is likely to be a trespass to the subsoil. It may be restrained by the adjoining owner of the subsoil.

Exceeding Authority

Where consent to entry is granted for is implied for entry for one purpose, but the person acts for some other purposes outside its term, the consent may be invalidated.  The issue may arise in relation to persons who enter under lawful authority for a particular purpose, but who intend to carry out another purpose.

Where a person enters land under the authority of law, but exceeds the terms of the consent, or abuses the authority, he is deemed to be a trespasser retrospectively.  A positive misdeed is required.  This may include staying at land longer than necessary for the purpose.

A person who enters with the express or implied consent of the owner does not retrospectively become a trespasser. He becomes trespasser from the moment he breaches the relevant consent.