Tort Law - Trespass

Trespass to Land

Permission to enter

Permission to enter a place is known as a licence to enter. (This is similar to a licence to occupy, an alternative to a lease). It can be granted implicitly, such as by opening the doors or gates to any premises, or expressly by inviting someone in, whether the access route is obstructed or not. A licence can be granted gratuitously, in which case it can be revoked at will any time. Alternatively it can be granted for payment. When granted for payment it becomes an obligation under a contract on the part of the occupant of the property (tenant, owner, hirer, etc) who granted it, to maintain that licence for the use of the licensee (the patron, visitor, customer, etc) in that the licensee must be permitted to remain on the property until they are finished with the agreed purpose of their presence there.

There are also a number of situations where permission to enter a property is a person may be permitted by law to enter a property.


Revocation and Refusal of Permission

There are expectations as to the conduct of a licensee which may be set expressly, or implied by normal expectations. Normal expectations include that the licensee will not act violently, steal, vandalise anything, intimidate others, or commit any other crime. When this happens the licensor and his/her/its agents are entitled to revoke the licence and expel the offending person immediately. An early Australian case on this was Cowell v Rosehill Racecourse[1]in which Mr Cowell was ejected from the racecourse after behaving in a disorderly manner. He was found to have breached the implied terms of his licence to enter the racecourse....






Permission to Enter Presumed by Law

Even though a private home is not built or used with public access in mind, there is an exception which the High Court created for practical necessity. In Halliday v Nevill[2]a police arrest was brought into question because it had followed the police chasing the plaintiff into his own property. In part of its reasoning the court ruled that unless there is an obstruction or notice denying access a person can enter the path or driveway and go to the front door to communicate with, or make a delivery to, any occupant. The court ruled that this then implies permission to step around a parked car, to retrieve lost property, or a wondering child. These examples are linked by a theme of necessity or obvious convenience. Not all are common events, and indeed some occupants may have very hostile reactions to such entries upon their turf, so the actual commonality or the actual reaction to a reason for entry is irrelevant. The court ruled that this implied licence can be revoked at any time....








[1] Cowell v Rosehill Racecourse Co Ltd [1937] 56 CLR 605.

[2] Halliday v Nevill (1984) 155 CLR 1.

[3] Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457.

[4] For the distinction between private and public places, see the chapter on Property Law.