The rights and wrongs of tres­pass

Oc­cu­pier of land must take ac­tion


In gen­eral terms, a tres­pass is an in­ter­fer­ence with land you right­fully oc­cupy by some­one with­out your per­mis­sion.

For ex­am­ple, some­one who comes on to your prop­erty or a branch/tree root that grows on to your prop­erty.

The right to take ac­tion against a tres­pass is with the oc­cu­pier of the land, not the owner, so the ten­ant of a prop­erty has to take ac­tion, not the land­lord.

To be a tres­pass the in­ter­fer­ence with your land has to con­tinue af­ter you re­voke any per­mis­sion (ex­press or im­plied) to be on the land.

There is an im­plied per­mis­sion for some­one to walk up your path to your front door to knock on the door.

If you tell them to leave your prop­erty they must do so straight away, but they are not tres­pass­ing if they leave as quickly as rea­son- ably pos­si­ble.

If they hang around or wan­der off around your prop­erty, they will be tres­pass­ing from that point.

If you have a sign on the gate – such as ‘‘No En­try’’ – they can­not en­ter your prop­erty at all. If you have a locked gate they can­not en­ter be­cause there is no im­plied per­mis­sion to do so.

In the ex­am­ple of tree branches over­hang­ing the bound­ary or roots grow­ing un­der it, the oc­cu­pier can ‘‘rem­edy’’ the tres­pass by cut­ting off the branches or roots and putting them back over the bound­ary.

You could also re­quire the neigh­bour to carry out that work. You can seek to re­cover the costs of the work from them.

If the tres­pass is by a per­son, they are com­mit­ting a crim­i­nal of­fence, as well as a civil wrong.

You can get the po­lice in­volved if the tres­passer will not leave or re­turns within two years af­ter be­ing warned to stay off any place.

The po­lice can ar­rest a tres­passer and re­move them from the land. The penalty once con­victed is a fine up to $1000 or three months’ im­pris­on­ment.

You can also phys­i­cally re­move a tres­passer your­self, as long as you only use rea­son­able force to do so. Call­ing the po­lice may be the wiser move.

You can take a civil claim against a tres­passer for com­pen­sa­tion for the breach of your rights as oc­cu­pier and do not have to prove any dam­age to your land or prop­erty.

If there is dam­age you can also seek com­pen­sa­tion from them for that dam­age. As usual, you need to prove that the dam­age re­sulted from the tres­pass.

J asks about tree roots lift­ing a drive­way and what the rule is for roots.

As men­tioned above,

roots com­ing across a bound­ary can be re­moved back to the bound­ary.

Care needs to be taken so that the tree is not desta­bilised. You also need to en­sure that it is not a pro­tected tree.

Be­cause the roots are un­der the drive­way there may not be a prac­ti­cal way of re­mov­ing them with­out re­mov­ing part of the drive­way. Proof that the dam­age was root-re­lated is needed, if re­moval and/ or re­pair costs are to be re­cov­ered.

An ar­borist may be able to say the roots are the cause of the dam­age to the drive­way – for ex­am­ple, by iden­ti­fy­ing what kind of tree the roots are from and which tree they are from.

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