Law – 4 Law of tort | e-Consult

The tort of trespass to land is founded on the principle that a landowner has an exclusive right to possession. The essential elements are:

1. Entry onto land: Any physical intrusion, however slight, constitutes entry.
2. Without lawful authority or permission: The entry must be unauthorised.
3. Intentional act: The defendant must intend the act that results in the entry, though not necessarily intend to trespass.

Intentional vs. unintentional trespass: The tort requires intentional conduct. If a defendant’s negligence causes a third party to enter the land, the landowner may pursue a claim in negligence, not trespass. However, if the defendant knowingly allows a third party onto the land, the intent element is satisfied.

Defences include:

• Consent: Express or implied permission from the landowner.
• Legal authority: Statutory powers, such as a police officer executing a warrant.
• Necessity: Private or public necessity (e.g., to prevent greater harm).
• Claim of right: The defendant honestly believes they have a legal right to be on the land, though this is narrowly applied.

If a defence succeeds, the trespass claim fails, and the landowner may be limited to recovering any actual damages caused by the intrusion.