Define: Trespass To Land

Trespass to land is a legal term that refers to the unauthorised entry onto another person’s property without permission or legal right. It involves intentionally entering or remaining on land that belongs to someone else without their consent. Trespass to land can occur whether the intrusion is intentional or accidental, and it does not necessarily require physical harm or damage to the property. Even minimal interference with the owner’s exclusive possession of the land can constitute trespass. The owner of the property has the legal right to take action against trespassers to remove them from the property and seek damages for any harm or interference caused by the trespass. Trespass to land is a civil wrong or tort, and individuals or entities found liable for trespass may be required to compensate the property owner for any resulting damages or losses. Additionally, trespass to land may also be subject to criminal penalties in some jurisdictions, particularly if the trespass is intentional or involves unlawful activities.

A trespass to land is any interference with a person’s property rights on his land. This may constitute entering the property without authorization, occupying someone else’s land, or placing objects (frequently rubbish) on the land, among other things. The significance of trespassing on land is not merely that damages may be awarded—often these cases do not involve loss or injury—but that one is entitled to eject a trespasser. In addition, since trespass is unlawful, a policeman who is committing a trespass cannot, as a matter of principle, be ‘in the course of his duties’. This may be a defence open to someone charged with an offence under s.89 of the Police Act (1994).

As well as the surface of the land and the buildings on it, it is well established that the ground beneath the land can be protected by an act of trespass. It is less clear whether the air above can be so protected. It now appears that if one person’s buildings or structures enter the air above another’s land, this is a trespass (Anchor Brewhouse v. Berkely House (1987)). It is less clear whether the airspace above the land can be the subject of an action in trespass. As far as aircraft are concerned, it cannot be (s. 12 of the Civil Aviation Act (1972), provided that the aircraft are operating at a reasonable height and in a reasonable way).

It is a matter of some contention as to who has a right to sue for trespass on land. Clearly, the would-be claimant must have some interest in land, but must it amount to an estate in land, or would a mere licence suffice (see: licence)? Clearly, the notional (paper) owner of the land will have standing to sue for trespass. It appears also (Harper v. Charlesworth (1825)) that possession, without a paper title, will suffice. However, the fact of possession does not appear to give standing to sue the notional owner of the land (Delaney v. TP Smith Ltd., 1946). A more difficult question is whether a person who is not in actual occupation and has no estate on land has standing to maintain an action in trespass. It has generally been assumed not; a mere licensee does not have standing unless in actual occupation of the land. However, doubt has been cast on this position in Manchester Airport PLC v. Dutton (1999). It appears that there are now circumstances in which a licensee will be able to sue for trespass without being in occupation.

Despite popular opinion to the contrary, ‘trespass’ per se is not a criminal matter. One cannot be prosecuted for it. However, recent developments have extended criminal sanctions to certain trespassory activities. See, for example, aggravated trespass and trespassory assembly.

There is some overlap between trespass to land and nuisance, but in nuisance, the claimant must show that he has suffered some actual loss or damage.

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 10th April, 2024.