Trespass - Tort Law
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 smallest crossing of a boundary (provided the boundary location 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 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.
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, 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.
It follows that if a person enters a property, or any part of a premises, with the intention of doing something criminal, such as shoplifting, then they are not subject to such a licence at all and are immediately trespassing. Naturally it is impossible to read minds, so this law usually is of academic interest only, except where the person’s intentions are clearly evident. They can be ejected lawfully as soon as such intentions become readily evident.
A notice refusing access, or an obstruction in the access way, will suffice to deny a licence to enter.
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 Nevilla 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.
This list of situations is not to exclude other reasons for entry; such lists are usually inclusive as it is expected that analogous situations will arise and be permitted. So if security guards are holding an offender under citizen’s arrest, or are seeking to make such an arrest, they should be able to pursue the offender into an open property, even though the occupant would never consent to such having been asked. This is not to liken citizen’s arrest in any way to police arrest, but it does fall within the scope of reasonable necessities. Likewise, open private property could be used as an escape route from the threat of harm.
The above rules as to improper intentions or improper conduct still apply. It follows that entry to open private property to do something well outside what is necessary and reasonable is also a trespass. For example, a person may have a licence to busk in public places, such as footpaths, or may wish to use their freedom of political expression. But using private land for a similar purpose is a trespass, even if public spaces in the intended location are too narrow. Because it is neither necessary nor to be expected from time to time, such activities are unlikely to be excused by law.
Therefore if a surveillance investigator enters a property for the purpose of conducting surveillance on the occupant, then they have trespassed, even if they are on an unfenced front garden. This includes if they are watching not the occupant but a neighbour, unless they have the occupant’s express permission.
This is one of many presumptions made by the common law for practical reasons. Like all other legal presumptions, however, it is rebuttable by a factual argument.
The case of Lincoln Hunt v Willesee stands for a limit on how far an implied licence to enter a place is deemed to enable a person to go. A news crew for the Nine Network entered an office reception area with cameras. They allegedly harassed staff filmed in the reception area, followed the receptionist down a passage, and opened interior doors. The plaintiff sued to prevent broadcasting of the footage obtained. The court found this to go well outside of what was normally to be expected. There was an implied licence for people to enter and conduct business with the occupant, but not to conduct impromptu interviews. The reason or context of entry was therefore essential.
Willesee serves as a caveat for civilian law enforcement of various kinds. It was ruled that most implied invitations are for limited purposes and any entry beyond such purpose is a trespass. Therefore if you enter a private place – a place not open for the general public – to conduct surveillance, recover a debt, or to interact under a pretext of some kind, then you will have committed a trespass.
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.
Cowell v Rosehill Racecourse Co Ltd [1937] 56 CLR 605.
Halliday v Nevill (1984) 155 CLR 1.
Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457.
For the distinction between private and public places, private land is that which is owned as a land title by an individual person or corporation, or by a definite group of people. Public land is owned by the Crown and is normally assumed to be accessible to all, except for parcels with deliberately restricted use and access.