#17077 - Trespass - Property Law

Trespass

• 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

• Trespass

• “Every unlawful entry by a person on land in the possession of another is a trespass for which a claim may be bought”

• Allows for the courts to award compensation to a landowner for the interference with their possessory rights and damage done.

• 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)

• 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

• Facts

• Cherie Matchitt and her husband lived in a property owned by Whangara B20 Incorporated

• 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 ‘uninhabitable’.

• 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?

• Judgement

• 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

• Noted that an honest mistake is no excuse for trespass

• Matchitts were in possession of land (as they had intent to possess and were actually in control of the land to the exclusion of others)

• Therefore, trespass had been committed

• Damages awarded (was noted that damaged should reflect the seriousness of the trespass)

• Exemplary damages also awarded - to specifically punish Te Momo (uncommon occurrence)

• Trespass Above and Below the Land

• Even if you own the land, possession is often difficult to prove

• Boundaries of possession can be especially difficult to prove

• Possibilities of ownership above surface

• The ownership is of the surface only -anyone doing stuff above your property can do what they want as long as they don’t cause damage, noise or inconvenience at the surface

• Ownership extends upwards indefinitely

• Ownership extends upwards indefinitely, but aircraft have a right of way.

• Ownership extends upwards, but there is a cut-off point.

• Possibilities of Ownership Below the Surface

• Ownership is of the surface only - anyone doing stuff below your property can do what they want as long as they don’t cause damage, noise or inconvenience at the surface

• Ownership extends indefinitely below the surface -anyone doing stuff below your surface area needs your permission (or a statutory right, or a property right of their own)

• Ownership extends downwards, but there is a cut-off point.

• Star Energy Weald Basin Ltd v Bocardo SA

• Facts

• Star Energy wanted to drill for petroleum (entitled to the crown)

• A well that was being drilled was on Bocardo’s estate 280 m below surface

• Bocardo sought to sue stars energy for trespass

• Issues

1. Did Bocardo’s land title go all the way through the substrata to the well?

2. Did Bocardo have possession of the substrata down to the well

• Judgment on Issue 1

• Referenced Latin maxim - cuius est solum, eius est usque ad coelum at ad inferos - “To whomsoever owns it, it is their all the way to the heavens and all the way to hell”

• Concluded that maxim does have something to offer the law

• If it is taken literally then Bocardo win (would lead to absurdity as extreme limits but this is not the case here)

• Maxim is less credible in present day due to airspace ownership rules

• Ownership above - there is precedent that ownership above is restricted to ordinary use and enjoyment - so there is a cut-off at a certain point (very unspecific test)

• American discussion - maxim does apply to airspace but plane are exempt due to their space being a ‘public highway’ - when compared to ownership below, technology is broadening use but not yet a public highway

• Ownership Below Conclusion

• Ownership can’t go all the way to centre of the earth but substrata is definitely above the cut-off point

• Therefore, issue 1 satisfied

• Judgment on Issue 2

• Powell v McFarlane precedent - owner has prima facie right to possession if no one else can claim it

• Overall Conclusion

• Star Energy did trespass

• Trespass Remedies

• Damages for harm done.

• Nominal damages to vindicate interference with the plaintiff’s possessory rights.

• Injunction (to stop either an ongoing or future trespass)

• Trespass Act 1980 - to get police force to help get trespasser off land

• Trespass by Relation - If X had the right to immediate possession when the trespass occurred and has regained possession by the time the action in trespass is taken they may sue in “Trespass by Relation”

• Action for the Recovery of Land (cause of action)

• If someone is wrongly in possession of owner’s land

• Need to prove immediate right to possess to get person off land

• Unclear how it applies in NZ

• Statute law offers similar protection

• Damages to the Reversion

• Where owner does not have possession (e.g. landlord) but the trespass permanently damages the land they will inevitably get back, they (as the reversioner) can sue for damages to the reversion

• Summary of Defining and Protecting Ownership

• Trespass protects ownership by deeming owner to be in possession (Bocardo, paras 30-31) unless, of course, someone else is in actual possession:

• If tenant is in possession the owner is relegated to an action for damage to the reversion (which will need proof of damage).

• If wrongdoer is in possession the...