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Trespassing

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Contents

Introduction

Trespass is the wrong (known as a tort in legal terminology) of illegally entering another person's property. In some cases, the act of entering the property may have been lawful and authorised, but the person entering may still be trespassing on subsequent occasions. The word trespass covers much more than people usually realise. All land in the UK belongs to someone. If you go on to land without the owner's permission, you are trespassing unless there is some right of access for the public, or for you specifically (for example, if you have acquired a right to pass over the land to reach some land of your own). An example of this would be the person who has a ticket to attend a performance, enters the theatre and then, having caused a disturbance, refuses to leave the premises.

People in a park will often protest (if asked to leave) that it is public land. This does not mean that they have a right to be on it at all times - they do not. If the place closes at a certain time and someone is present after that time, they can then be considered to be trespassing. If a visitor misbehaves at any time and refuses to leave when asked to do so by someone with a right to do so (usually the landowner or a representative) then the visitor becomes a trespasser because they no longer have the landowner's permission to be there, even if they entered legally.

Trespassing is usually a civil wrong and dealt with accordingly. However, in England and Wales certain forms of trespassing, generally those which involve squatters, raves and hunt saboteurs are covered by criminal law. There are offences under the Criminal Justice and Public Order Act 1994 Sections 61 and 62 of trespassing on land and trespassing with vehicles. With this in mind, police attendance may be required. Otherwise the owner of the land may need to deal by way of injunction. If you are in any doubt, you should seek legal advice.

Civil trespass

Where the trespass does not form part of a specific criminal offence e.g. a person wanders onto another's land from a public footpath intentionally or otherwise, they may be sued for the hypothetical value of the benefit received by the person trespassing. The owner of the land can also get an injunction against the trespasser preventing them from continuing to trespass. An owner or occupier of property has a duty not to leave property in a dangerous condition, and in some circumstances a trespasser may successfully sue for damages if injury occurs. Vehicles parked or abandoned on private land can be treated as per civil trespass.

Neighbours and trespassing

In most circumstances your neighbour should not go onto your land without your permission. However, in some situations your neighbour may need to access your land in order to make some repairs to their property. Their right to do this may be set out in the title deeds to your property or in England and Wales in the Access to Neighbouring Land Act 1992, which gives a limited right of access to a neighbour's garden/land to carry out 'basic preservation works'. The right given by the Act has strict rules attached to it. Written notification must be given to the next door garden owner and it is enforceable by Court Order if access is denied. This Act does not extend to Northern Ireland.

If the access required is not in the title deeds nor of the kind provided for in the Access to Neighbouring Land Act for England and Wales, then they also have the right to apply to the court for access. If it is the case that your neighbour doesn't need to come on to your land for the purpose of making repairs, they should not come on your land without permission. If they do so, they are trespassing.

See our section 'Going onto your neighbour's land' for more information.

Dealing with the problem

The first thing to do is to approach the neighbour and ask them to stop entering your land. The best and safest way of doing things is to put this request in writing and keep a copy of the correspondence for your records. If they continue to trespass on your property and they rent their property rather than own it, you could complain to their landlord (you can find out who the landlord is by contacting the Land Registry). This might have the effect of stopping the problem or lead to the eviction of the tenants. If no action is taken, you may be able to obtain an injunction against them by court action.

It is possible that a criminal offence has taken place, such as a breach of the peace or an assault. If this is the case, then you should call the police.

Deterring trespassers

The traditional way to deal with trespassing was to build walls to prevent the trespassing or add additional deterrents to an existing wall, such as spikes or broken glass. However, the local authority has the power to remove any wall or fence bordering a public highway if it thinks it could pose a danger to highway users. In addition, landowners must be careful not to block any public rights of way.

Any walls or fences would also need to comply with planning rules, and permission will need to be applied for when building a wall higher than one metre which borders on a public highway or footpath, and two metres in any other case.

If you are planning to take court action, or even if you just want to show your neighbour or their landlord that their behaviour is unreasonable, you may need to start keeping a record of incidents. It may also be useful to see if you have any other neighbours, friends or family who have been witnesses to incidents, and would be prepared to write a statement to this effect.

As a last resort, you could threaten court action. A letter threatening court action may be enough to stop the behaviour without you actually having to take it any further. If you wish to pursue it further, you could lodge a civil suit (a lawsuit alleging violations of civil law by the defendant) against the neighbour for nuisance, damages and trespass. However, before proceeding this far, you should seek legal advice as any action could be costly.

Scotland

In Scots law, trespass is the passage through another's land without consent. Trespass may be committed by persons, by animals or (if temporary) by things. As in England, trespass is a civil wrong in Scotland, and can sometimes also constitute a criminal offence, e.g. trespass which breaches poaching laws.

However, the legislation that established trespass as an offence has been amended by the Land Reform (Scotland) Act 2003 which establishes universal access rights to most land and inland water. People only have these rights if they exercise them responsibly by respecting people's privacy, safety and livelihoods, and Scotland's environment. The Scottish Outdoor Access Code provides detailed guidance on the responsibilities of those exercising access rights and of those managing land and water and sets out a number of exceptions where the land access right doesn't apply:

  • Houses and gardens, and non-residential buildings and associated land;
  • Land in which crops are growing;
  • Land next to a school and used by the school;
  • Sports or playing fields when these are in use and where the exercise of access rights would interfere with such use;
  • Land developed and in use for recreation and where the exercise of access rights would interfere with such use;
  • Golf courses (but you can cross a golf course provided you don't interfere with any games of golf);
  • Places like airfields, railways, telecommunication sites, military bases and installations, working quarries and construction sites; and
  • Visitor attractions or other places which charge for entry.
Whilst most of the Criminal Justice and Public Order Act 1994 does not apply in Scotland, the sections concerned with trespass and several others DO apply.

Access which doesn't comply with the rights set out in the Scottish Land Reform Act would still constitute trespass. Trespass is generally committed by persons or animals, and must be distinguished from 'encroachment' which is committed by things. In Scotland, trespass is only committed by things if their presence on the land is temporary. So, if someone moved a boundary fence, the fence would be encroaching (not trespassing) on your land. However, the law is similar to the English law in that if you allow this state of affairs to continue unchecked, then you will be deemed to have consented to the encroachment and you will lose your rights to object. You can ask the individual to stop trespassing which will prevent any acceptance or consent to the trespass and preserve your rights to act against it.

The defences to trespass are:

  • Consent
  • Judicial Warrant
  • Emergency
  • Exercise of a right. For example, this could be a servitude, a public right of way, or an access right under part 1 of the Land Reform (Scotland) Act 2003.
Regarding remedies, interdict is a possible remedy in Scotland as in England & Wales. However, it should be noted that this remedy is discretionary and the person asking for interdict must show the likelihood of future trespass before the court will award interdict. Interdict for straying animals is also not available unless the animal is of a type normally, and easily, confined. In addition, it is possible to exercise self help, but this must not be too vigorous or it may constitute a civil or criminal wrong. Finally, damages can occasionally be obtained provided they can be proven.