The law of trespass in England & Wales is grounded in both civil and criminal law. Trespass is general defined as a tort entailing unlawful occupation or interference with the property interests of another. This can include outright owners or holders of non-freehold interests, such as tenants.
Forms of trespass
Trespass can be found to have occurred in a variety of scenarios, including occupation, use and development on land. It can occur where a license or easement holder uses the land of another in excess of their agreement. If animals wander onto neighbouring property, this can constitute trespass. If natural features grown to encroach upon the land of another, this may also qualify as trespass. Lastly, the tort can also apply where the airspace above property is interfered with, or through drilling or excavating below the premises of another.
Trespass at civil law
At civil law, there are several elements that must be present to legally qualify as a trespass. In the first instance, the alleged trespasser must have intended to interfere with the property interests of another. If by contrast the trespass was accidental, it is more appropriately qualified under the tort of negligence.
Trespass can only occur without consent of the owner or occupier of the property. If the owner provides express or implied permission, or if a legal interest such as a private or public easement is in effect, the tort does not apply.
Any party in possession of land can bring an action against a trespasser, which will include tenants. Remedies available to the tenant include injunction, damages and order for recovery.
If the trespass is continuing, the occupier can sue to have the trespasser stopped from entering or using the premises. Where there is no evidence of irreparable damage at present or in future, the court may refuse to grant an injunction.
Damages can be awarded on the basis of actual harm caused to the owner or occupier’s property, or unlawful use resulting in benefits to the trespasser. If physical damage is caused, the measure of damages is the reduced value of the land.
If the owner or occupied has been entirely dispossessed, they can bring a court action to have the premises vacated and returned to their possession. In order to do so, they must prove they have a right to immediate possession.
Defence of necessity
In some instances it may be necessary for property interests to be interference with. The Police and Criminal Evidence Act 1984 makes it lawful for law enforcement to enter onto premises in order to affect an arrest. Where there is a threat of harm to persons and property only avoidable through intrusion into the property of another, this may be excused under the doctrine of necessity.
Trespass under criminal law
As of 2012, trespass upon residential property was rendered a criminal offense, subject to custodial sentence and fines up to £5,000.
Contact our Trespass Solicitors Mayfair and throughout London Today
In order to avoid becoming embroiled in costly and time-consuming litigation, it is important to consult a Property Litigation Solicitor when carrying out activities at or near adjacent land.
At Lewis Nedas, our team of Property Solicitors have broad experience in both commercial and residential property litigation. We have successfully advised clients with highly complex and multi-faceted cases. To speak with one of our Property Lawyers, please contact us on 020 7387 2032 or complete our online enquiry form.