Trespass is traditionally seen as entering someone else’s property. If anyone strays onto land without the owner’s permission, this is trespass, unless there is a public right of access. Parks allow a public right of access, but if the park closes at a particular time, accessing the park after these hours is trespass. If people are allowed onto property and trouble occurs, they may be asked to leave. If they refuse to leave the premises, they are committing trespass.
Land includes subsoil, airspace and buildings, so it is trespass to throw something onto someone else’s land. One foot on land which does not belong to the individual and is not a public right of way is trespass. Abandoned or parked vehicles on private property is a civil trespass.
Most forms of trespass are a civil wrong, where no harm or physical damage is being caused to the property. Examples of criminal trespass includes squatters, raves and hunt saboteurs. Criminal trespass offences are committed under Sections 61 & 62 Criminal Justice and Public Order Act 1994. For criminal trespass, the landowner will need to bring an injunction against the trespassers and the police may also need to get involved.
In respect of civil trespass, whether intentional or not, the landowner is entitled to sue for the hypothetical value of the benefit from trespassing. Substantial damages are only likely to be paid if physical damage is suffered and legal action may be costly.
Civil trespass can even apply to a neighbour. Permission should be sought before accessing neighbouring land. Often, access is required on neighbouring property in order to carry out repairs on their own premises. This right may be detailed in the title deeds to the property, but if there is no such mention in the title deeds, accessing neighbouring property is governed by the Access to Neighbouring Land Act 1992. This Act gives limited rights to enter neighbouring property to carry out basic preservation work. Under the Act, written notification of access must be given to the neighbour. If access is then denied, a court order may be issued. If someone constantly enters neighbouring land for no specific reason and without permission, it is not unreasonable to explain to them that they are trespassing and request they do not enter the land again. If the neighbour rents their property, the landlord may be able to assist in stopping the trespass. If this does not work, the next step is to obtain an injunction by court action.
The landowner must not leave the property in a dangerous position. If the trespasser is injured on the land, he is entitled to sue the landowner for damages. Also, if a ball lands on neighbouring property, the owner of the ball is entitled to it back. If the landowner keeps the ball he is committing theft.
One way of preventing trespass is to build walls and gates around the property. The property owner must ensure, however, that appropriate planning rules are complied with, as Local Authorities will have restrictions on the height of such barriers. Property owners must also ensure that public rights of way are not being blocked.
If there are persistent problems with trespass, keep a record of activity. Ask friends and neighbours to make witness statements. A letter threatening court action may prevent the trespass. In addition to bringing a suit for civil trespass, a claim may also be brought for nuisance and for any damage suffered.
So far, trespass has been referred to in respect of land. There are however 2 other forms of trespass. These are trespass to the person and trespass to chattels.
Trespass to the person involves assault, battery and false imprisonment. To secure a claim of trespass to the person, there must be intent. If there is no intent, the action is one of negligence and not trespass. Assault can be either a criminal trespass or a civil trespass. Battery and false imprisonment are both considered to be civil trespass. False imprisonment must be complete imprisonment. It does not have to be for a long length of time. Imprisonment of a child as a means of punishment is acceptable so long as it was reasonably necessary. Surgeons walk a very fine line regarding trespass to the person. Self defence and protection of property is an acceptable defence so long as no excessive force was used.
Trespass to chattels is the interference with possession of property. Injury should also result from the trespass. For a civil action to be brought in respect of trespass to chattels, 3 elements must be established. The first of these is that there was no consent. Actual harm must then have taken place. Finally, there must be an intention of trespass.