Trespass
Overview
Trespass protects rights in property. It protects the enjoyment of a property. It goes further and applies technically to the slightest incursion.
The Constitution protects the inviolability of a citizen’s dwelling house. This guarantee is vindicated and implemented by trespass law.
Trespass is an interference with the possession of land. A person who is entitled to the exclusive possession of land is entitled to bring the action. His entitlement must be to the immediate possession of the land.
The law of trespass applies to all land and buildings. The slightest infringement of a person or thing onto another’s land without express, or implied consent constitutes trespass. There will not necessarily be a right to substantial compensation for minor or technical trespasses.
Trespasses may be claimed without proof of damage. However, a technical trespass may merit nominal damages only. Actual loss must be shown in order for any significant level of damages by way of compensation to be granted.
A trespass may be continuing, if the incursion continues. If the wrongdoer offers to remedy the trespass but consent to enter is refused, it is likely that continuing liability will cease.
Direct
Trespass must be direct. It is constituted by direct action against land. Throwing an object onto land constitutes trespass.
In contrast, permitting the growth of branches and roots over the boundary line is regarded as indirect and, therefore, not trespass. Such incursions may be treated as nuisances.
A person may commit a trespass by causing an object to enter the land of another. The slightest touching or infringement onto a property is enough. Putting or setting something in place that will enter the land by the lapse of time would constitute trespass. Similarly, chasing animals onto land constitutes trespass.
Incursion
The slightest entry onto the land of another constitutes trespass. There is a right to sue for trespass, even though no damage or loss has been suffered damage.
At common law, a person’s ownership of land extended upwards and downwards without limit. However, it is now likely to be limited to a reasonable depth below and height above.
Statute clarifies that overflying aircraft are immune from trespass, even if a common law trespass action could arise.
Voluntary Entry
Trespasses are “strict” torts / civil wrongs. It is not necessary to prove that the trespasser acted with intent or even negligence in his actions. However, the action must be, at least, voluntary.
Involuntary entry onto land does not constitute trespass. If a person is pushed onto the land of another, he’s not responsible in trespass. The other, who has pushed him, is likely to be liable.
However, if he enters land mistakenly, thinking it to be his own, he may still be liable in trespass. The onus is on the defendant to show that his actions are neither negligent nor intentional. Involuntary entry may arise when a person is physically carried into the land of another.
Tort Against Possession
In order to maintain an action for trespass, the claimant must have possession of the land. Use of the land without possession is not sufficient. Interference with easements constitutes a separate civil wrong, namely interference with servitudes, which is akin to nuisance.
A person who has possession of the land may maintain trespass even though he has no title to it. However, where greater or permanent damage is caused to the land; a person with the title who is not in possession, such as the landlord, may claim for damage to his interest. This is separate from the liability to the tenant.
A person who has entered land may not challenge the entitlement of the possessor to maintain trespass against him. If, however, he enters on behalf of or with the consent of the person entitled to possession, he may set up that person’s right. This follows from the basic principle of relativity in actions to recover possession of land and goods.
A landlord may not generally sue for trespass during the term of the lease. The right of occupation lies with the tenant.
A person may assert a claim for trespass even though he does not have title to the property. A squatter in possession may maintain an action in trespass against all persons save those with a better title.
Legal Powers to Enter
The Constitution protects the inviolability of the dwelling house. Entry into a dwelling house is permissible only where permitted by laws. This provision requires certain minimum protections where State authorities seek to enter a dwellinghouse in the exercise of powers. Prior legal authority is usually required.
Statute law requires a search warrant or other process, before and for a lawful entry. Common law may allow entry in limited circumstances.
There are many instances where public and local parties have the power to enter land. In some cases, a warrant issued by a court is necessary. It is usually required for entry into a dwellinghouse.
In the case of other lands, there may be powers to enter without a warrant Typically, in the case of regulated businesses, the Garda Siochana or the relevant regulator’s authorised officers have powers to enter business premises and inspect for the purpose of their regulatory functions.
It is presumed at common law that a property owner gives implied authority to the police force to enter the forecourt of premises in order to enforce the law or to prevent a breach of the peace. The Criminal Law Act 1997 provides the powers of Gardai to enter premises for the purpose of making an arrest.
Trespass to Subsoil
Landowners are presumed to retain technical ownership of the highway in front of their property. They are presumed to retain title to the subsoil.
The use of this area in front of the property other than for the purpose of passage and other lawful use of the highway, may be a trespass to the rights of the adjoining owner, so-called trespass to the sub-soil. This follows from the use being inconsistent with the permitted use of the road as a highway.
Trespass to the subsoil may arise in the context of picketing. An assembly of persons outside a property for protest or other purposes is likely to be a trespass to the subsoil. It may be restrained by the adjoining owner of the subsoil.
Verge
Condron v Galway Holding Company [2021] IECA 216 involves a claim for trespass by the defendants operating under a road opening licence removed the grass verge and incorporating it into the footpath without consent. The claim for trespass was upheld.
Whelan J. in the Court of Appeal upheld the High Court’s decision
“very limited acts of maintenance contended for could not in and of themselves establish a public right of way over the disputed grass verge by the local authority in circumstances where an imputed dedication and acceptance of the disputed portion of the grass verge as a right of way was not established since there was an absence of probative evidence of user of the disputed grass verge as an integral portion or any part of the public highway at the locus in question …
The aspects of the evidence where the trial judge determined that the respondent had exercised control over the grass verge coupled with his presumptive ownership of the soil to the centre of the highway were significant factors in this case. While some were of greater duration and significance, cumulatively they entitled the trial judge to conclude that the hedge to hedge presumption was rebutted by the respondent’s actions. Equally important is that there was no evidence.. that anybody made use of the grass verge in question at any time as a public roadway or public path.”
Exceeding Authority
Where consent to entry is granted or is implied for entry for one purpose, but the person acts for some other purposes outside its term, the consent may be invalidated. The issue may arise in relation to persons who enter under lawful authority for a particular purpose but who intend to carry out another purpose.
Where a person enters land under the authority of law but exceeds the terms of the consent or abuses the authority, he is deemed to be a trespasser retrospectively. A positive misdeed is required. This may include staying on land longer than necessary for the purpose.
A person who enters with the express or implied consent of the owner does not retrospectively become a trespasser. He becomes a trespasser from the moment he breaches the relevant consent.
References and Sources
Irish Books
Tully Tort Law in Ireland 2014
McMahon & Binchy Law of Torts 4ed 2013
McMahon & Binchy Case Book on the Law of Torts 3ed 2005
Connolly Tort Nutshell 2ed 2009
Quill Torts in Ireland 4ed 2014
Fahey Irish Tort Legislation 2015
Healy Principles of Irish Torts 2006
EU and UK Texts
Lunney, M. and K. Oliphant Tort law: text and materials. 5ed 2013
Peel, Edwin, Goudcamp, James Winfield and Jolowicz on tort 19 ed 2014
Horsey, K. and E. Rackley Tort law. 6ed edition 2019
Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law 7ed 2012
Giliker, P. Tort 5ed 2014
McBride, N.J. and R. Bagshaw Tort law 6ed 2018
Steele, J. Tort law: text, cases and materials 4ed 2017
O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases and materials 7ed 2015
Horsey, H. and E. Rackley Kidner’s casebook on torts 13ed 2015
Clerk & Lindsell on Torts 22ed 2019
Charlesworth & Percy on Negligence 14ed 2019