Let’s talk about the law on trespass. There are two types of trespass that you can sue for: trespass to the person and trespass to land. This article focuses on trespass to land.
You can define trespass to land as “someone unjustifiably intruding on land that belongs to someone else.”
The words ‘belongs to’ in that definition though, can be a bit misleading. A person does not have to have legal title (e.g. a deed) to establish a cause of action in trespass – they only need to show that they are in possession of the land. This is because our system of land ownership is based primarily on possession – see this article for some background.
The Elements of Trespass to Land
If you want to bring an action in trespass, you need to show two things:
- That you are in possession of the land.
- That the person you’re suing has intruded on the land.
Possession
For the purpose of trespass, possession is not the same as being the legal owner. It really means occupation or physical control of the land. Showing possession depends on the facts of each case. Proof of ownership though, is ‘prima facie’ proof of possession. In other words, the court will assume that the legal owner of the land is the same person in possession. The assumption will not apply however, if someone else is in possession.
Intrusions
Trespass to land is ‘actionable per se‘, which means that it’s not necessary to show that any damage was done to the land. The slightest act of crossing the boundary is enough. (Of course, the level of intrusion will have an effect on any award of damages.)
Remedies for Trespass to Land
The appropriate remedy depends on the nature of trespass. For example, if someone is causing damage to the land, then damages are appropriate as compensation. On the other hand, if someone is passing through the land without permission, an injunction may be more suitable.
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Disclaimer: This article is general information only – not legal advice. If you have a legal issue, you should contact a qualified attorney.