This is an extract of our Trespass document, which we sell as part of our Property Law Notes collection written by the top tier of University Of Otago students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Property Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Defining and Protecting Ownership
'Landowners' with an estate or interest in the land can exclude unauthorised people
Action for recovery of land - the right to bring a cause of action to court to prove you are the owner and get land but when it has been taken
Torts - protects landowners from illegitimate encroachment
"Every unlawful entry by a person on land in the possession of another is a trespass for which a claim may be bought"
o Allows for the courts to award compensation to a landowner for the interference with their possessory rights and damage done.
o Allows person to assert ownership or possession of disputed land
Can only sue for trespass if out have possession, not mere ownership
Courts often have to determine the boundaries of possession
Elements of Trespass
The defendant's behaviour
- Unlawful direct interference with the land
- Unauthorised entry (don't necessarily prove damage has been done)
o The plaintiff's right/interest
- Actual possession of the land in question (requires intent to possess and were actually in control of the land to the exclusion of others) - Matchitt
Matchitt v Whangara B20 Incorporated
- Cherie Matchitt and her husband lived in a property owned by Whangara
- 25 September 2006 - the Maori Land Court granted Whangara an eviction order against the Matchitts
- Court said there had to be a two month notice before eviction
- 27 November 2006 - Mrs Te Momo (and others) entered the property,
removed fixtures, left everything on the lawn, and made the house
- Matchitts thought the two month notice would only take effect after the tenancy had ended so they had four months in total - thus charged Te
Momo for trespass.
- Judge held that they did have four months
Issue - Was there a trespass?
- Defines trespass as "unjustified direct interference with the land in the
- possession of another and is actionable per se without proof of actual damage"
- Noted that damage to the land need not be established - damages can just be a vindication of possessory rights
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