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Tort Law - Trespass

Trespass to Land

Trespass to outdoor land is the same in the eyes of the law as trespass to a building, to areas inside a building, the airspace above a property, and the ground beneath it. Real estate boundaries are those defined on the property title, as registered, or as defined in the title deed. Additionally, a trespass can be constituted not only where you cross into a property uninvited, but also, having been granted access, by crossing into an area within it that is off limits to you.


There once was a time when every real estate title had no upper or lower limits and was considered to extend to the centre of the earth and to the farthest extremes of the universe. Yes, really. But now boundaries are set in terms of what the land occupants’ reasonable needs are, so that mining and air travel can proceed. Nevertheless, even the minutest crossing of a boundary (once the boundary is proven) will constitute a trespass.


Immediate Right of Possession

For a person to prove they have a right to sue for a trespass to land they first need to understand the property rights held by all interested different parties. This is because ownership can mean different things. For more detail refer to the chapter on Property Law. A person without any current right to occupy or control the land has no right to sue for a trespass.


The Timing of the Offence

The timing of the offence of trespass depends on when a person becomes aware that they are not allowed to be where they are, or when they form an intention to do something they are not allowed to do – putting the purpose of being there outside the scope of permitted access. A person may be made aware of their unwantedness when entering – if they have to break a lock of climb a fence – or when ordered to leave.

A person entering to steal or to harm someone, then their purpose of access is contrary to any ordinary purpose. The owner or occupier is not seen to be implicitly granting permission to enter for any such purpose. such a person then is trespassing from the outset regardless of how free everyone else is to enter. If they take even an unexpected opportunity so that their innocent purpose transforms into a culpable one, then they trespass from that moment.

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