Trespass to Land Flashcards
Definition?
Any direct unjustified interference with land in possession of another, either intentional or negligent without the person’s consent or lawful authority. Entick v Carrington
- TITLE TO SUE
Actual possession not based on ownership Newington v Windeyer
Tenants have actual exclusive possession Kelsen v Imperial Tobacco Co
Licensee has no title to sue Malone v Laskey
- DIRECT INTEFERENCE WITH LAND
Must be direct and unauthorised: Southport Corporation v Esso Petroleum
• Buildings
• Subsoil Burton v Spragg
• Airspace Bernstein v Skyviews General Ltd
Remaining on property after consent has been withdrawn and they don’t leave within reasonable time Colwell v Rosehill Race Course
Placing or throwing material object onto land Smith v Stone
- FAULT
Interference to plaintiff’s possession of the land must be the fault of the defendant and the act was intentional or negligent. Smith v Stone
Voluntary Public Transport Commission of NSW v Perry
- WITHOUT CONSENT
If plaintiff has given consent, either expressly or impliedly, there is no trespass TCN Channel 9 Pty Ltd v Anning
4.1 Express:
Where licence is not gratuitous, licensee may become trespass if revocation of licence is breach of contract Plenty v Dillon
Trespass if they enter premises for different purpose other than their licence. R v Barker
- 2 Implied:
To members of public entering for legitimate theory TCN Channel 9 Pty Ltd v Anning.
- 3 Revocation:
Revocation may take place after the plaintiff has consented to entry or may be withdrawn prior to entry that may otherwise be implied. TCN Channel 9 Pty Ltd v Anning
Must be given a reasonable amount of time to leave. Colwell v Rosehill Racecourse.
4.4 Police:
If dwelling is private, may not enter without consent or a warrant Plenty v Dillon
4.5 Trespass Ab Initio
When a person enters land legally pursuant to the common law or statutory authority and commits a wrongful act while on the land, the person is deemed a trespasser from time of entry. O’Brien v Shire of Rosedale
