Trespass occurs when someone enters onto another person's land without their permission. Trespass results in the unlawful occupation or interference with the property interests of another. The person being affected by the trespassing does not necessarily have to be the owner of the property; it can also be someone with non-freehold interests, such as a tenant. If someone is trespassing on your property, the correct route to follow can be complicated. There are various forms of trespass, which can be dealt with in different ways. Here we examine the different types and what can be done about it.
What is trespass?
Trespass is a tort, which is a civil wrongdoing. Generally, it is not classed as a criminal offence. There are various different ways that trespass can occur including:
- Illegal gatherings (such as people setting up camp) or hunt saboteurs on private land.
- Boundary disputes including encroaching over a boundary with a fence or building.
- Fly-tipping rubbish on another’s land.
- Members of the public using private land as a short cut.
- Remaining on the premises after the expiry of the lease.
- Animals wandering onto neighbouring land or natural features encroaching neighbouring land.
- Interfering with the airspace above the land or drilling or excavating below another’s land.
Claim for nuisance
Where the trespass results in a claim for nuisance, the owner/occupier can request that the police ask the trespasser to leave. The landowner must have already asked the trespasser to leave and one of the following criteria must be satisfied (a) causing damage to the land (b) using threatening or abusive behaviour to the occupier of the land (or their family/employees or agents) or (c) the trespasser had 6 or more vehicles on the land. The trespasser cannot return to the premises within 3 months of leaving (it is an offence to do so) and the police can seize vehicles used at this point. Damages can also be awarded where the trespass results in a nuisance.
Squatting in a residential premise is a criminal offence under s144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LAPOA) meaning that in certain circumstances the police can get involved. This is now regarded as a criminal offence and can lead to a prison sentence of 6 months and/or a £5000 fine.
The squatters must have entered as trespassers and be trespassing in a residential building. They must know (or ought to have known) that they were trespassing and are continuing (or intending) to live on the premises for a period of time. Where the trespass is accidental rather than intentional then the act is more likely to fall under the tort of negligence rather than trespass.
Another requirement is that trespass only applies if the owner or occupier of the property has not given consent. The landowner must, therefore, be careful that they do not give express or implied permission or that there is a legal interest such as a private or public easement in effect.
Landowners do have to be careful since squatters are offered some protection during the eviction process under the Protection from Eviction Act 1977. Landowners must ensure that they take proper advice so that the eviction is lawful. Where this is not the case, the landowner can face claims of harassment or intimidation from the squatters (even if this was not their intention).
In situations where there is a boundary dispute, the landowner can use the courts to obtain an injunction against the other party to ensure that the trespass ends. Where there is a financial loss as a result of the trespass, the civil courts are also able to award damages. This would be applicable where there is damage to the property or a drop in the value of the property as a result of the trespass.
There are different types of trespass, and there is also a range of possible civil remedies against a trespasser, some of which have already been looked at. The main remedies that are available include:
- Damages- they can be awarded based on the actual harm suffered by the landowner or where the unlawful use of the property results in benefits to the trespasser. Where physical damage is caused, damages are based on the reduced value of the property. The courts can award nominal damages where no actual loss has been suffered.
- Injunctions- where the trespass is ongoing, the landowner can ask for an injunction from the Courts to prevent the trespasser from entering or using the property. It is also possible for a landowner to apply for an injunction where someone is continually fly-tipping on their land to make them remove the rubbish. However, the Courts have discretion as to whether they will order an injunction and will not order something that is disproportionate. The Court can instead order a declaration or damages to compensate for the loss.
- Recovery- in cases where the trespasser has completely dispossessed the landowner, the landowner can request that the court order the trespasser to leave the premises and return it to the landowner's possession. The landowner must prove that they have a right to immediate possession.
- In cases of fly-tipping, the local authority can assist by removing the dumped rubbish and investigating reports of incidents where this has occurred.
- Possession proceedings- where trespassers occupy a premise without permission then the Courts can make a possession order meaning that the landowner can apply for a bailiff to evict the trespassers.
Defence of necessity
In some cases, a trespasser may be able to use the defence of necessity. Where there is a threat of harm to either persons or property that is only avoidable through intruding on another’s property then the doctrine of necessity may apply. Again, this is something that a landowner should take advice on from a specialist property lawyer.
Contact our Trespass Lawyers in Mayfair and throughout London
The law surrounding trespass can be complicated and to avoid costly and time-consuming litigation it is very important to get specialist advice from a property litigation lawyer as soon as possible. Our lawyers can guide and support you through the whole process. We can advise landowners on the best possible route and whether to involve the police. We can also advise on dispute resolution, mediation or pre-action letters where appropriate to resolve the situation without resorting to the courts.
At Lewis Nedas, we provide a service that reflects the range and complexity of property law disputes. Our team of expert lawyers will be able to handle all aspects of property litigation, whether commercial or residential. We have successfully advised clients with highly complex and multi-faceted cases. If you have questions regarding property law, or are perhaps facing a dispute which you need help to deal with, please contact us on 020 7387 2032 orcomplete our online enquiry form.