Trespass to land — common mistakes

When analysing a scenario, first identify the direct act of interference. Then, ask whether the defendant's act was voluntary. Do not confuse this with intending to trespass – the motive is irrelevant. A common error is to think that someone who is lost and accidentally walks onto land has not trespassed; they have, as the act of walking was voluntary.

Yes. Trespass to land is 'actionable per se', which means the act of trespassing is itself a tort, regardless of whether any damage is caused. The court is protecting the claimant's right to exclusive possession of their land. In such cases, the claimant would be awarded nominal damages or, if the land was used by the trespasser, substantial damages based on a reasonable rental value ('mesne profits').

No, the claimant does not need to be the owner. The tort of trespass protects 'possession', not ownership. Therefore, a tenant in a rented property has the right to sue a trespasser, including the landlord if they enter without permission or justification. The key is who has exclusive possession and control of the land at the time of the interference.

This is a common point of confusion. Overhanging branches or encroaching tree roots are considered an 'indirect' interference, not a direct one. Therefore, this is not trespass to land but falls under the tort of private nuisance. The remedy would be to seek an abatement (e.g., trimming the branches back to the boundary) or sue in nuisance, not trespass.