Trespass to Property

Meaning of Trespass
Trespass is a physical interference by a person in a property belonging to another person. It
could be a tort of trespass when there is a direct interference with the peaceful enjoyment of
the land in the form of unlawful entry, unlawful placing of things or inducing dangerous
things or animals into the land or it could be a criminal act provided under Section 441 of
Indian Penal Code, 1860 which defines criminal trespass as Whoever enters into or upon
property in possession of another with intent to commit an offence or to intimidate, insult or
annoy any person in possession of such property, or having lawfully entered and unlawfully
remains there. Intention is an element as mens rea is important for an act to be criminal.
Punishment for the same is provided under Section 447, which includes imprisonment for up
to 3 months, fine up to Rs 500 or both.
The Supreme Court examined the definition of a trespass in 2010 in Laxmi Ram Pawar v.
Sitabai Balu Dhot1, in the context of Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971. The Supreme Court was of the opinion that, A trespass is an
unlawful interference with ones person, property or rights. With reference to property, it is
Wrongful invasion of anothers possession.
A person who unlawfully remains in the property of the other is also liable for trespass by
remaining on the land. This is when a person lawfully enters into another persons property
but remains there even after the right ceases to exist. There is continuing trespass as well,
which means that trespass by way of personal entry continues as long as the wrong-doer is
personally on the land. Or, if he has induced a thing, trespass continues for as long as the
thing is removed from the land.

Ingredients
- Law of Torts :

1
Civil Appeal No. 2789 of 2005
The main element in law of torts is "interference". This must be both direct and physical, with
indirect interference instead being covered by negligence or nuisance. "Interference" covers any
physical entry to land, as well as the abuse of a right of entry, when a person who has the right to
enter the land does something not covered by the permission. If the person has the right to enter
the land but remains after this right expires, this is also trespass. It is also a trespass to throw
anything on the land. For the purposes of trespass, the person who owns the land on which a road
rests is treated as the owner; it is not, however, a trespass to use that road if the road is
constructed with a public use easement, or if, by owner acquiescence or through adverse use, the
road has undergone a common law dedication to the public.

In Hickman v Maisey2and Adams v. Rivers3, the courts established that any use of a road that
went beyond using it for its normal purpose could constitute a trespass: "Although a land owner's
property rights may be subject to the right of mere passage, the owner of the soil is still absolute
master." British courts have broadened the rights encompassed by public easements in recent
years. In DPP v Jones4 the court ruled that "the public highway is a public place which the public
may enjoy for any reasonable purpose, providing that the activity in question does not amount to
a public or private nuisance and does not obstruct the highway by reasonably impeding the
primary right of the public to pass and repass; within these qualifications there is a public right of
peaceful assembly on the highway." The principles established in Adams remain valid in
American law.

- Criminal Law

It can be gathered that, the essential ingredients of a criminal trespass, therefore are:
1.Entry into or upon property in the possession of another;
2.If such entry is lawful, then unlawfully remaining upon such property;
3.Such entry or unlawful remaining must be with intent to commit offence, annoy or
intimidate the person.

2
[1900] 1 QB 752
3
11 Barb. (N.Y.) 390 (1851)
4
[1999] 2 AC 240
Also, the property has to be in actual possession of another person. Actual means to the
exclusion of all other people. It need not necessarily be in the possession of the owner, it could
be with the tenant as well. Besides, the entry need not be forceful; it is enough if it is without
permission. However, the owner needs to be diligent about a peaceful trespasser who is unaware
of the title of the true owner since, if the owner does not assert his title within a prescribed period
and trespasser is allowed to have peaceful, continuous possession, he acquires an absolute title
over the land. The limitation period provided under Article 65 of the Limitation Act, 1963 for
suit for possession of immovable property is twelve years.

This was observed by the Supreme Court in Nair Service Society v. K.C. Alexande5r on the basis
of which various propositions with regard to trespasser vis-a-vis a true owner were laid down.
Some of the relevant propositions are mentioned below:

Unauthorized entry into anothers land will not have the effect of dispossessing the true
owner. Such acts will lead to settled possession only when the true owner having
knowledge of it, acquiesces
When the trespasser is not in settled possession, the rightful owner can re-enter and
reinstate himself by removing the obstruction or unauthorized construction by using
minimum force. Such action by true owner will be considered as defending his
possession.
However, if the trespasser is in settled possession and such adverse possession continues
for 12 years, the right of the true owner is extinguished.

Therefore, if the acts of the person in possession of a property are irreconcilable with the rights
of the true owner, such acts of the person in possession would constitute adverse
possession/settled possession against true owner. As a consequence, it is always advisable for the
owner to approach the court for remedy against any kind of trespass if repeated notices to the
trespasser go ineffective.

The owner or tenant of the land in possession of the property is entitled to remedies in the form
of:

5
AIR 1968 SC 1165
(i) Injunction to restrain trespasser from causing any further damage
(ii) Damages compensation for all the losses you have incurred due to the trespass.

* Defences

There are several defenses to trespass to land

License, justification by law, necessity and jus tertii. License is express or implied permission,
given by the possessor of land, to be on that land. These licenses are irrevocable unless there is a
flaw in the agreement or it is given by a contract. Once revoked, a license-holder becomes a
trespasser if they remain on the land. Justification by law refers to those situations in which there
is statutory authority permitting a person to go onto land, such as the England and Wales' Police
and Criminal Evidence Act 1984, which allows the police to enter land for the purposes of
carrying out an arrest, or the California state constitution, which permits protests on grocery
stores and strip malls, despite their presenting a general nuisance to store owners and patrons.

Jus tertii is where the defendant can prove that the land is not possessed by the plaintiff, but by a
third party, as in Doe d Carter v Barnard.6 This defense is unavailable if the plaintiff is a tenant
and the defendant a landlord who had no right to give the plaintiff his lease (e.g. an illegal
apartment rental, an unauthorized sublet, etc.). Necessity is the situation in which it is vital to
commit the trespass; in Esso Petroleum Co v Southport Corporation7, the captain of a ship
committed trespass by allowing oil to flood a shoreline. This was necessary to protect his ship
and crew, however, and the defense of necessity was accepted. Necessity does not, however,
permit a defendant to enter another's property when alternative, though less attractive, courses of
action exist.

6
[1849] 13 QB 945
7
[1956] AC 28