The law on trespass by relation states that a person who had a right to take immediate possession of land, and enters it in order to exercise that right, is regarded as having been in possession ever since the right of entry accrued. They may therefore sue for any trespass committed since the right of entry accrued. This principle allows a tenant to sue for any trespass committed between the time when the tenancy was agreed and the time when they took possession of it. In other words, only the possessor of such land will be able to sue for trespass.
For example, in The Six Carpenters, 6 carpenters went into an inn (which they had a lawful right to do), ordered bread and wine, and paid for it. Later, they ordered more wine, and this time refused to pay. It was held that a wrongful act committed at this stage could retrospectively render their original entry unlawful. However, the defendants were held not liable because they had not committed an act, only an omission, and this was not enough to create liability (failing to pay).
To be liable for trespass, the defendant must have intended to do the action that amounted to the trespass. They do not have to have intended to commit a trespass, or to know that what they did would be a trespass. Nor do they need to have any intention to cause problems for the claimant, or have any kind of hostile purpose. In Basely v Clarkson, the defendant was cutting grass, and without realizing, went over the boundary onto his neighbour’s land. This was held to be trespass, because he intended to cut the grass he was cutting, even though he did not intend to cross his neighbour’s boundary. Where a person trespasses accidentally, either being unaware that the land is private, or mistakenly believe it is their own, liability is incurred nevertheless. This principle helps to uphold the statement that entry without permission is never justifiable.
There are some defences and instances where entry to the land is justifiable. One is where the defendant has a licence. Where the person in possession of land gives someone permission, express or implied, to be on that land, there is no trespass, so long as the boundaries of that permission are not exceeded. A licence which is given without valuable consideration can be revoked at any time. Where a licence is given by contract, it can also be revoked at any time, although this may result in liability for breach of contract. Once a licence is revoked, the person to whom it was granted must be allowed a reasonable time in which to leave and remove their goods; after that, they become a trespasser.
Another instance is where trespass is justified by law. People sometimes avoid liability for trespass because the law provides some justification for their conduct. For example, the police may enter and search premises under S.17 PACE 1984. Another defence is necessity. In Esso Petroleum Co v Southport Corporation, the sea captain was forced to discharge oil, which then polluted the shoreline, in order to prevent his ship breaking up and endangering the crew after it ran aground. In such circumstances, trespass to land may be justifiable and would not be actionable.
If an action for trespass to land is successfully brought, plaintiff may be able to ask for damages. If there is damage suffered by the claimant, substantial damages may be given to compensate the claimant. This would include profits taken by defendant during the occupation- so long as it is deemed reasonable.
There are some instances when injunctions are a more suitable remedy. They are a prohibition in order to allow the claimant to enjoy use of their land. Injunctions are granted at the discretion of the court and can be used to prevent threatened or repeated breaches.
In cases where trespassers refuse to leave, landowners may use reasonable force to expel trespassers. However, this is not encouraged as it may amount to breach of peace. Squatters, for example, whose presence is continuous and threatens to be permanent, an action for recovery for land could be brought against them. Police are given powers under the Criminal Justice and Public Order Act 1984 to remove such persons.
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