“Trespassers will be prosecuted” is a sign that is all too common, however it carries with it a high degree of misconception, as property trespass is in fact not a criminal offence and therefore an individual who commits property trespass cannot be ‘prosecuted’. Nonetheless. It is an offence under civil law and an individual who is guilty of trespass will be liable and can have a claim brought against them in the civil Courts Trespass concerns itself with similar aspects of a boundary dispute, however they are two distinct civil claims. Boundary disputes tend to be lengthy in nature and usually centre around an ongoing dispute involving a wall, fence or a hedge that runs along a boundary of a property or a plot of land. In contrast, trespass can be short and may be as insignificant as walking across a property that you do not legally own.
Property trespass is defined under English law as the unjustifiable interference to somebody else’s land. This interference must be physical and direct and can be short in nature. Examples include such instances as crossing over land you do not own or remaining on land when permission has been withdrawn. Trespass in civil law is actionable whether or not any damage is caused to the claimant.
Although, it may seem somewhat apparent as to what can and cannot be trespassed upon, this becomes somewhat less clear when one considers the space above and below the physical ground. The space above the ground was legislated under the Civil Aviation Act 1982, which ruled that it is not trespass if an aircraft is flying at a reasonable level. This means that a crane that is on your land could be trespass, whereas a plane that is travelling on a flight path which is above your house would not be a trespass.
There are available defences to trespass which include a license, which can either be express or implied. There may also be a defence to trespass when the trespass is a necessity. The case of Esso Petroleum Co Ltd v Southport Corporation: HL 1955 demonstrated this. In this case, a ship’s captain had to ground the ship causing substantial amounts of oil to be leaked into the ocean. At first instance, the Court denied the defence of trespass, however this was reversed by the Court of Appeal who held that necessity could be a defence to trespass and was in this particular case.
Summerfield Browne Solicitors have offices in London, Birmingham, Cambridge, Oxford and Market Harborough, Leicester.