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Trespass To Land Contd...

The document discusses different types of trespassing including mistaken, involuntary, or negligent entry. It also discusses defenses to trespassing such as license, rights to entry, and necessity. License can be express, implied, or contractual. A licensee who exceeds their license becomes a trespasser. Necessity is a privilege against trespass if the action is strictly necessary to prevent public or private nuisance.

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Jonathan Jeevaratnam
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11 views4 pages

Trespass To Land Contd...

The document discusses different types of trespassing including mistaken, involuntary, or negligent entry. It also discusses defenses to trespassing such as license, rights to entry, and necessity. License can be express, implied, or contractual. A licensee who exceeds their license becomes a trespasser. Necessity is a privilege against trespass if the action is strictly necessary to prevent public or private nuisance.

Uploaded by

Jonathan Jeevaratnam
Copyright
© © All Rights Reserved
Available Formats
Download as PDF, TXT or read online on Scribd
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Mistaken or Involuntary or Negligent

Entry
 Trespass to land is an intentional tort. However, intention for the act is required,
not an intention to trespass. Consequently, deliberate entry is required and lack of
knowledge as to trespass will not be a defence (Conway v George Wimpey & Co
[1951] 2 KB 266, 273).
Mistaken entry: D has unknowingly entered onto the land by that time and has no
intention to enter onto the land(Basely v Clarkson (1681) 3 Lev 37)
 In Basely v Clarkson (1681) 3 Lev 37, the D owned land adjoining P’s, and in
mowing his own land he involuntarily and by mistake mowed down some grass
on the land of P. P had judgment for 2s.
Involuntary entry: D has been made to forcefully enter and has no intention to enter
onto the land (Smith v Stone (1647) Sty 65)
 An involuntary trespass is not actionable: Smith v Stone (1647) Sty 65, where D was
carried onto the land of P by force and violence of others; there was trespass by
the people who carried D onto the land, and not by D.
Negligent entry: A careless entry has been made by the D and in breach of duty
owed by D ( League Against Cruel Sports v Scott.)
 A negligent entry is possible and was considered in League Against Cruel Sports v
Scott. The Ps owned 23 unfenced areas of land.
Defences to Trespassing: License
 A license is a permission to enter land and may be express, implied or
contractual. A dictionary definition is as follows:
 “In land law, a license is given by X to Y when X, the occupier of land, gives Y
permission to perform an act which, in other circumstances, would be
considered a trespass, e.g., where X allows Y to reside in X’s house as a lodger. A
bare license is merely gratuitous permission. A license may be coupled with an
interest, as where X sells standing timber to Y on condition that Y is to sever the
timber; in this case the sale implies the grant of a license to Y to enter X’s land.
 For contractual license see Horrocks v Forray [1976] 1 WLR 230. See Street v
Mountford [1985] AC 809.”

 If a licensee exceeds their license, or remains on the land after it has expired or
been revoked, the licensee becomes a trespasser (Wood v Leadbitter (1845) 13
M&W 838; Hillen v ICI (Alkali) Ltd [1936] AC 65). Such a person is allowed a
reasonable time in which to leave (Robson v Hallett [1967] 2 QB 939; Minister of
Health v Bellotti [1944] KB 298).
 There is also the defence of estoppel by acquiescence, that is, consent which is
expressed or implied from conduct, eg, inactivity or silence (Jones v Stones
[1999] 1 WLR 1739 – mere delay in complaining is not acquiescence).
Defences to Trespassing: Rights to entry
 A person may exercise a lawful right of entry onto land, for example:
o A private right of way granted to the defendant;
o A public right of way;
o A right given by the common law, such as the right to abate a nuisance;
and
o A right of access given by statute, such as ss16-18 PACE 1984, the Access to
Neighbouring Land Act 1992 and s8 of the Party Wall Act etc. Act 1996.
o Countryside and rights of way act 2000, police and criminal evidence act
o Search warrant by courts and to arrest a person by the police
Defences to Trespassing: Necessity
 Necessity is a privilege against trespass. a defendant is excused from
liability for trespass to land if the action is strictly necessary to prevent
public/private nuisance. To aid another person whose property or
person is in imminent danger and is not safe.
 Necessity has 2 forms:
1. Public Necessity: This involves an act to protect the wider public against
them
2. Private necessity: This would involve an act is to protect your own
property against the threat of them
 The case law of necessity when applied is when trespass is uncertain.
The general rule seems to be that there would be an actual forgive and
the acts of the defendant must be reasonable in the light of all the facts

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