'Would you mind getting off my property, please? Thank you'

Trespass to land involves a person unjustifiably interfering with land which is in the immediate and exclusive possession of another. Usually, it consists of a person entering upon land belonging to a third party without consent.  There are various options open to the occupier or landowner faced with trespassers. Seeking a court order to remove trespassers whilst effective, can be costly with the costs incurred rarely being recovered due to the trespassers usually being "persons unknown".

One option is for a landlord/occupier to exercise the common law right of a land owner/occupier to remove the trespasser themselves. This "self help" remedy consists of a person using "reasonable force" to remove trespassers.

There is little in the way of judicial guidance as to what amounts to "reasonable force". Each case is judged on its facts but in general terms, it is the amount of force that a reasonable person in the same situation would believe is necessary to make the trespasser leave. This is completely subjective and land owners/occupiers run the risk of being found to have crossed the line beyond what is reasonable.

No attempt by an occupier or landowner should be made to forcibly remove a trespasser until the trespasser has been asked to leave the property first. Once the trespasser has been asked to leave and they do not leave within a reasonable time, "reasonable force" can be used to make the trespasser leave. However, if more force than what is considered "reasonable" is used then the person employing the force may find criminal protection and a civil action brought by the trespasser.

This remedy is fraught with risk. Whilst other options may be more costly or time consuming, reliance on the common law right to remove a trespasser should be seen as the exception rather than the rule.

One point to remember is that a land owner/occupier cannot exercise this common law remedy if the land subject to trespass is residential property. Property owners shall also remember, however, that it is now a criminal offence for a trespasser to remain in occupation if a residential property where the owner/legitimate occupier opposes that occupation.

Posted on: 12/02/2015

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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