Trespass—claims and defences
Trespass—claims and defences

The following Property Disputes guidance note provides comprehensive and up to date legal information covering:

  • Trespass—claims and defences
  • What is trespass?
  • Continuing trespass
  • Who can claim?
  • Defences

This Practice Note covers what trespass to land is, including trespass in relation to minerals and airspace, trespass by a tenant after expiry of a lease, continuing trespass, who can bring a claim, the necessary elements for actual possession and the possible defences to a claim of trespass.

What is trespass?

Trespass is the unlawful presence of a person on land or buildings in the possession of another, including:

  1. wrongfully setting foot on or riding or driving over it

  2. taking possession of it or expelling the person in possession

  3. unlawfully remaining after authority expires (eg a former tenant remaining in possession against the will of the owner is, apart from statutory protection, a trespasser from the date of determination of the tenancy. However, a tenant holding over is not a trespasser until demand is made as trespass can only be committed against the present possessor of the land). For further information see Practice Note: CPR 55 procedure in relation to residential common law tenancies.

  4. using it unlawfully for a purpose other than that for which a public or private right of way over it was granted

  5. destroying anything permanently affixed to it

  6. placing or fixing anything on it or in it (in Eaton the installation of air-conditioning apparatus, outside its demise, and without landlord’s consent, was a trespass by the

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