'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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