TRESPASS TO LAND

Definition of landSection 5 of the National Land

Code defines land to include;(a) The surface of the earth(b)The earth below the surface(c) All vegetation and other natural

products(d)All things attached to the earth(e) Land covered by water

Trespass to land - definitionAn act of direct entering or

remaining on land or directly causing any physical matter to come into contact with land in the possession of another without lawful justification.

This tort protects the interest of the plaintiff in having his land free from physical intrusion of a direct nature.

Basic characteristicsTrespass to land is a tort actionable per se

(without proof of actual damage)It is a continuing wrong – if a trespasser

remains on the land, or allows things he has unlawfully placed on it to remain there, such trespass can be the subject of a fresh action for each day that it continues.

However this should be distinguished from the continuing consequences, e.g. digging a hole on the land – gives rise to one action only.

Cheah Kim Tong v Taro Kaur (1989)Fact: The Ps alleged that the D’s

house was encroaching on their land. D argued that her house was built in 1968 and the P had become the registered owner only in 1980. Previous owner of the land never raised the issue of encroachment.

Held: This was a case of a continuing trespass as long as the D did not remove the encroaching portion of the house.

Essential Elements

Trespass to land

Direct interference

Possession

IntentionWithout lawful

justification (defences)

Direct interferenceThe element of directness is what

distinguishing trespass from other torts which may also involve land – for e.g. nuisance, negligence and R v F.

Direct means the invasion of the P’s land is not merely consequential upon the act of the D.

However it is sometimes difficult to draw a line between ‘direct’ and ‘consequential’ act.

Thinking point?Which of the following areDirect interferences:- Smoke from a neighbour’s

bonfire.- A farmer’s sheep grazing on the land of another .- Loud music from a nightclub.

Types of interference

Interference

Wrongful entry

Remaining on land

Throwing/placing things

Wrongful entry

Remaining on the landIf a person entered into the land

with permission of the owner but remains there beyond that permitted time – he may be liable for trespass.

For e.g. a tenant may become a trespasser after the expiration of tenancy period.

Throwing/placing/projecting

Trespass may be committed by throwing, placing, projecting or causing other objects to come into contact with the land.

It is not necessarily involved personal entry.

E.g. encouraging a dog to run to P’s land, dumping rubbish, driving nails into the P’s wall, branches of tree on neighbour’s land.

2nd element - PossessionTrespass to land is a wrongful act against

possession.It aims to protect a person’s possession of

his land.Possession basically means the right to

exclude others, whether or not the possessor physically present.

In order to succeed in his action for trespass, the P must establish his right of possession.

Mere physical presence/control of the land does not amount to possession –e.g. guest, a servant, a lodger cannot sue for trespass.

Types of possession

Possession

In law In factConstructive possession

Possession in lawA person is said to have

possession in law if he has the intention not merely to exclude the world at large from interfering with the thing in question but to do so in his own account and in his own name.

E.g. registered owner of the land, landlord, a holder of title.

Possession in factRefers to a real occupation of the land.

The fact that he is in occupation of the land may give him a right to exclude others from interfering.

However to give a right of action in trespass, possession must be exclusive.

Normally possession in law exist in conjunction with possession in fact. For e.g. the owner of the land who occupies the land, tenant.

Thinking point?Can you sue a trespasser to your

hostel room?Can a tenant sue a landlord for

trespass?

Constructive possessionWhen a person who is entitled to

immediate right to possession actually enters upon his land and acquires possession, he is deemed to have been in possession from the moment the right accrues.

He can sue for acts of trespass committed while he was actually out of possession (known as trespass by relation)

However he must be in actual possession when the action is brought.

CasesSidek Hj.Muhammad v the

Government of the State of Perak – although the P had occupied the land for more than 20 years, the court held they were squatters. Therefore, they have no right either in law or in equity.

Principle – a squatter has no right to bring an action for trespass. In fact they can be sued by the owner/ state authority for trespass.

TOL (temporary occupation licence) holder Under the law a TOL holder has

exclusive possession of land during the period of the licence.

Julaika Bibi v Mydin – the D occupied the house with the consent of previous holder of TOL. The TOL was granted to the P.

Held: The D was a trespasser from the moment the previous title was cancelled and a fresh TOL was issued to the P.

3rd element - intentionA person may be held liable for trespass to

land if he intentionally and voluntarily entered into other person land without permission.

It is immaterial whether he really intended to invade/trespass the P’s land.

Mistake is no defence in trespass. The D may be liable even though he does not know that he is trespassing. E.g. having lost his way or genuinely but erroneously believed that the land was his. (see MBF Property v Madihill )

Types of trespass to land

Trespass

Highway Sub-soil Airspace Ab initio

Trespass on the highwayAs the highway may only be used

for the purpose of passage, a person may held liable for trespass if he used it for other purposes (unreasonable use of the highway)

Against the person in possession of the soil on which the highway rests and the owner of the adjoining land to the highway.

Hickman v Maisey (1900)Fact: The P owned the soil of a high

way, and occupied adjoining land, on which racehorses were trained. The D traversed the highway for two hours to obtain information on the speed and performance of the horses.

Held: This was not an ordinary and reasonable use of the highway. The D had abused his right of entry and was therefore a trespasser.

Trespass to the subsoilA person owns land below the surface

as much as it is reasonably necessary for lawful use and enjoyment of the said land.

Therefore, any intrusion upon the soil is just as much as entry upon the surface. For e.g. Building under ground tunnel.

This type of trespass is no longer important nowadays especially because mineral rights beneath land are vested in the state.

Trespass to the airspaceOriginated from the maxim “cuius est

solum eius est usque ad coelum at ad inferos” (Whoever possesses the land also possesses the sky above it to the highest heavens and the earth beneath it to the greatest depths).

However, this right has been limited by statute.

Generally it is confined to such height which is necessary for the ordinary use and enjoyment of the land and the structures on it.

Limitation to the right to the airspaceSection 44(1) of the NLC – gives

right to the owner and person in possession of the land “the exclusive use and enjoyment of so much of the column of airspace above the surface of the land, and so much of the land below the surface, as is reasonably necessary to the lawful use and enjoyment of the land”.

Section 76(1) of the Civil Aviation Act 1969The section provides that no action in

trespass or nuisance shall lie “…by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable or the ordinary incidents of such flight…”

Unless it causes actual loss to a person or property (section 76(2))

CasesKelsen v Imperial Tobacco Co. –

An advertising sign erected by the D projected about 8 inches into the airspace above the P’s single storey shop.

Held: the interference is amounted to trespass. The Court granted mandatory injunction to remove the sign.

Bernstein v Skyviews & General LtdFact: The D flew over the

property of Lord Berstein and took aerial photographs.

Held: Trespass was not committed because a land owner’s right only extend to a reasonable height above the property, not to a height of several hundred feet above the land.

Karuppannan v BalakrishnanFact: The side windows of the D’s

four-storey shop house were protruding into P’s land.

Held: As the owner of the land, the P is given the exclusive use of the airspace above the surface of the land. Therefore the D had no legal right to encroach into the airspace of P’s land unless the P allowed it.

Trespass ab initioThis doctrine applies when a person

enters the land or premises of another under the authority given by law and subsequently abuses it by an act of misfeasance (positive wrongful act). He is then to be regarded as a trespasser from the moment of entry.

This rule was originally designed to provide a remedy v. abuse of power by officials who had a legal right to enter premises. For e.g. the police.

Conditions

Conditions

Original entry authorised by

law

Abuse - misfeasance

Abuse – relate to and take away the legal

reason for entry

1st element - Authorised entryThe entry must be in pursuance

of a right conferred by common law or statutory law.

It does not apply to an entry under a contract or leave granted by the occupier.

2nd -Wrongful act - misfeasanceThe subsequent abuse must amount to a

positive wrongful act (misfeasance) and not merely an omission or nonfeasance.

The Six Carpenters case (1610) – 6 carpenters entered an inn (this is a lawful right given by law). They drunk a wine but refused to pay.

Held: Although they had abused their lawful right to enter a common inn, they were not trespasser ab initio because their refusal to pay was a nonfeasance only (mere act of omission)

3rd element – unjustifiable entryThe wrongful act must make the

defendant’s presence totally unjustifiable.Therefore if there is an independent

reason exist for the entry which is unaffected by the wrongful act, the doctrine does not apply.

Elias v Pasmore (1934) – police constables lawfully entered premises to arrest the P, and while there they took documents some of which they were not entitled to take.

DecisionThey were trespassers only as to

the documents which were wrongly taken but they were not liable as trespassers ab initio for damage to the premises which they had lawfully entered for the purpose of the arrest.

Defences

Justification to enter

licenceJustification by law

NecessityRe

caption

LicenceThere can be no trespass if a person or

object is on the land with the express or implied consent of those in possession.

Such a person is called a licensee – e.g. a news paper distributor, bread seller, grass cutter etc.

He may be liable for trespass if he exceeds his licence.

If the licence is revoked the licensee should leave within a reasonable time.

Justification by lawActs which would otherwise be trespass

are frequently prevented from being so by the existence of some justification provided by law.

This justification is conferred either by common law or statute.

E.g. under common law, a person may enter the land of another to abate a nuisance.

The CPC authorises a police to enter a premise for the purpose of arrest or to search for stolen property.

NecessityIn cases of rescue, self-defence

or attempting to avoid accident, trespass to land is not actionable because such cases are considered as necessity.

However, in order to raise this defence there must be an actual danger and the steps taken must be reasonable.

Re captionA brief trespass to recover

property which has got on the land of another will be a defence.

For e.g. if A’s cows or sheep wander on B’s land, A has a right to enter B’s land to get them back.

RemediesDamages

Injunction

Re-entry

Action for recovery of land (ejectment)

Action for mesne profits

Re entryThis is a self-help remedy.A person entitled to immediate

possession of the land may re enter such land either personally or through a servant or agent.

He may use reasonable force if the trespasser refuses to leave.

EjectmentGovern by section 7 & 8 of the

Specific Relief Act.An action for recovery of land will

enable a P to obtain an order for possession and writ for its enforcement against a person in occupation of his land.

There is a special procedure provided in the Rules of High Court 1980 (Order 45 rule 3. )

Action for mesne profitsThis is an action by the P

claiming possession for the damage suffered by being kept out of possession.

For e.g. he can claim for rent and the cost of the action.

It is normally joint with an action for recovery of land.