Trespass To Land Lecture

DEFINITION

Trespass to land occurs where a person directly enters upon another’s land, remains upon the land, or places or projects any object upon the land, without permission or other lawful justification.

This tort is actionable per se without the need to prove damage. These notes concern the law of England and Wales.

By contrast, nuisance is an indirect interference with another’s use and enjoyment of land, and normally requires proof of damage to be actionable.

THE WAYS IN WHICH TRESPASS MAY OCCUR

1. Entering upon land

Walking onto land without permission, or refusing to leave when permission has been withdrawn, or throwing objects onto land are all examples of trespass to land. For example, see Basely v Clarkson (1681) 3 Lev 37, below.

2. Trespass to the airspace

Trespass to airspace above the land can be committed. In Kelsen v Imperial Tobacco Co [1957] 2 QB 334, D committed trespass by allowing an advertising board to project eight inches into the airspace above P’s shop. The landholder’s rights in airspace extend only to the height necessary for the ordinary use and enjoyment of the land and structures upon it: Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479.

Note that s76(1) of the Civil Aviation Act 1982 provides that no action shall lie in nuisance or trespass by reason only of the flight of an aircraft over any property at a height above the ground which is reasonable having regard to wind, weather and all the circumstances, provided the relevant Air Navigation Order and orders under s62 have been complied with. However, s76(2) confers a statutory right of action for material loss or damage to persons or property on land or water caused by aircraft in flight, taking off or landing, or by persons or objects falling from them, without proof of negligence or intention, subject to the provision concerning the claimant’s own negligence.

3. Trespass to the ground beneath the surface

In Bulli Coal Mining Co v Osborne [1899] AC 351, the Ds mined from their land through to the P’s land. This was held to be trespass to the subsoil. Subsurface drilling without permission can also be trespass: Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35. Sections 43–44 of the Infrastructure Act 2015 now provide a statutory right to use land at least 300 metres below the surface within a landward area for exploiting petroleum or deep geothermal energy, without dispensing with other applicable obligations.

POSSESSION OF LAND

This tort developed to protect a person’s possession of land, and so the claimant normally needs possession, or an immediate right to possession, rather than merely ownership.

Thus, a landlord of leased premises does not have exclusive possession, nor ordinarily does a lodger or a bare licensee. However, a tenant or subtenant does. A landlord may sue for injury to the reversion. A contractual licensee with a right to occupy may obtain possession against trespassers so far as necessary to enforce that right: Manchester Airport plc v Dutton [2000] QB 133.

CONTINUING TRESPASS

A continuing trespass is a failure to remove an object (or the defendant in person) unlawfully placed on land. It will lead to a new cause of action each day for as long as it lasts (Holmes v Wilson and others (1839) 10 A&E 503; Konskier v Goodman Ltd [1928] 1 KB 421).

For example, in Holmes v Wilson and others (1839) the Ds built supports for a road on P’s land. The Ds paid damages for the trespass, but were held liable again in a further action for failing to remove the buttresses.

MISTAKEN OR NEGLIGENT ENTRY

Trespass to land may be intentional or negligent. For intentional trespass, intention for the act is required, not an intention to trespass. Consequently, lack of knowledge as to trespass will not be a defence (Conway v George Wimpey & Co [1951] 2 KB 266, 273).

Mistaken entry (Basely v Clarkson (1681) 3 Lev 37)

In Basely v Clarkson (1681) 3 Lev 37, the D owned land adjoining P’s, and in mowing his own land he by mistake mowed down some grass on the land of P. P had judgment for 2s.

Involuntary entry (Smith v Stone (1647) Sty 65)

An involuntary trespass is not actionable: Smith v Stone (1647) Sty 65, where D was carried onto the land of P by force and violence of others; there was trespass by the people who carried D onto the land, and not by D.

Negligent entry (League Against Cruel Sports v Scott [1986] QB 240)

A negligent entry is possible and was considered in League Against Cruel Sports v Scott. The Ps owned 23 unfenced areas of land.

Staghounds used to enter the land in pursuit of deer. The Ps sued the joint Masters of the Hounds for damages and sought an injunction against further trespasses. Park J issued an injunction in respect of one area restraining the defendants themselves, their servants or agents, or mounted followers, from causing or permitting hounds to enter or cross the property. Damages for six trespasses were awarded. The judge said: “Where a master of staghounds takes out a pack of hounds and deliberately sets them in pursuit of a stag or hind knowing that there is a real risk that in the pursuit hounds may enter or cross prohibited land, the master will be liable for trespass if he intended to cause the hounds to enter such land or if by his failure to exercise proper control over them he causes them to enter such land.”

DEFENCES

Licence

A licence is a permission to enter land and may be express, implied or contractual. A dictionary definition is as follows:

“In land law, a licence is given by X to Y when X, the occupier of land, gives Y permission to perform an act which, in other circumstances, would be considered a trespass, e.g., where X allows Y to reside in X’s house as a lodger. A bare licence is merely gratuitous permission. A licence may be coupled with an interest, as where X sells standing timber to Y on condition that Y is to sever the timber; in this case the sale implies the grant of a licence to Y to enter X’s land. For contractual licence see Horrocks v Forray [1976] 1 WLR 230. See Street v Mountford [1985] AC 809.”
–  (LB Curzon, Dictionary of Law, Fourth Edition).

If a licensee exceeds their licence, or remains on the land after it has expired or been validly revoked, the licensee becomes a trespasser (Wood v Leadbitter (1845) 13 M&W 838; Hillen v ICI (Alkali) Ltd [1936] AC 65). Such a person is allowed a reasonable time in which to leave (Robson v Hallett [1967] 2 QB 939; Minister of Health v Bellotti [1944] KB 298). A contractual licence cannot simply be revoked contrary to its terms, and a licence coupled with an interest is not freely revocable while the interest subsists.

There is also the defence of estoppel by acquiescence, where conduct, including silence in appropriate circumstances, encourages a mistaken belief in a right and detrimental reliance makes it unconscionable to insist on the strict legal right (Jones v Stones [1999] 1 WLR 1739 – mere delay in complaining is not acquiescence).

Rights of entry

A person may exercise a lawful right of entry onto land, for example:

• A private right of way granted to the defendant;
• A public right of way;
• A right given by the common law, such as the right to abate a nuisance; and
• A right of access given by statute, such as ss16–18 PACE 1984, an access order under the Access to Neighbouring Land Act 1992, and s8 of the Party Wall etc. Act 1996. These powers are subject to their statutory conditions: the 1992 Act requires a court order where access is not agreed, and s8 normally requires 14 days’ notice, with an exception for emergencies.

Necessity

Necessity may justify reasonable entry to avert a real and imminent danger, as in Cope v Sharpe (No 2) [1912] 1 KB 496. Mere convenience does not suffice.

REMEDIES

Remedies include:

• Damages (which may be nominal where no compensable loss or use is established). Damages may compensate physical damage or the value of unauthorised use even without physical damage: Morris-Garner v One Step (Support) Ltd [2018] UKSC 20, paragraphs 25 and 95(1).
• An injunction to prevent further acts of trespass (at the discretion of the court). Injunctions against unidentified future trespassers require a compelling need not adequately met by other remedies and safeguards including notice, an opportunity to challenge the order and proportionate limits on its duration and geographical scope: Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47.
• An action for the recovery of land if a person has been deprived of lawful possession of the land (formerly known as ejectment).

Note 1: for unregistered land, an action to recover land is generally barred twelve years from the date on which the right of action accrued, subject to statutory exceptions: s15 of the Limitation Act 1980. For registered estates, s96 and Schedule 6 of the Land Registration Act 2002 instead generally allow an application for registration after ten years’ adverse possession, with notice to the registered proprietor. If opposed, the application normally fails unless one of the statutory conditions applies. A further application may succeed after another two years’ adverse possession, subject to the statutory conditions. Transitional rules preserve certain rights acquired before 13 October 2003.

Note 2: possession proceedings against trespassers are now governed by Part 55 of the Civil Procedure Rules, including interim possession orders where their conditions are met (replacing the former Schedule 1 procedure and RSC Ord. 113). The Protection from Eviction Act 1977 generally requires a court order to evict residential tenants or licensees, subject to exceptions for excluded tenancies and licences; it does not give every squatter that protection. Under s144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, it is a criminal offence to be in a residential building as a trespasser, having entered as a trespasser, knowing or being in a position where one ought to know that one is a trespasser, and living or intending to live there. The offence does not cover a tenant or licensee merely holding over after permission ends.

A relevant case:

Countryside Residential Ltd v Tugwell (2000) The Times April 4

An action for mesne profits, to recover damages for loss during a period of dispossession.

Right of entry, ie the right of resuming possession of land by entering, subject to statutory restrictions. Section 6 of the Criminal Law Act 1977 generally prohibits using or threatening violence to secure entry where someone present opposes entry and this is known, subject to its exceptions; ownership alone does not justify it.

Note 1: A lease may give the lessor the right to re-enter on a breach of covenant by the lessee. For breaches within s146 of the Law of Property Act 1925, the required notice must specify the breach, require its remedy if capable of remedy and require monetary compensation; the lessee must fail to comply within a reasonable time before forfeiture can proceed. Section 146 generally does not apply to forfeiture for non-payment of rent. Relief from forfeiture and additional statutory protections for residential leases may also apply.

Note 2: It is unlawful to enforce a right of re-entry, except through court proceedings, under a lease of a dwelling while anyone is lawfully residing in the premises: s2 Protection from Eviction Act 1977.

Last updated: 11 November 2026