Trespass

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Trespass is the unlawful presence of a person on land in the possession of another. For examples of acts which have been found to amount to trespass, see Practice Note: Trespass—claims and defences.

The trespass must be to real and corporeal property, ie land or buildings, the vesture of land or the herbage of pasture. The benefit of an easement does not give sufficient standing to sue for trespass as long as it does not give exclusive possession.

There is no liability in trespass where there is no act of direct intrusion on another person’s property, though there may be in nuisance.

For more information regarding trespass, see Practice Notes: Trespass—claims and defences and Trespass—remedies.

Remedies

The methods of regaining possession from a trespasser which are available to a landowner include:

  1. •

    physical repossession

  2. •

    arrest of the trespasser by the police for a criminal offence

  3. •

    injunction (including quia timet and interim injunctions)

  4. •

    possession claim (including a claim for an interim possession order)

In addition to the above remedies which are available for regaining possession, a landowner may also seek damages in respect of the

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Latest Property Disputes News

Property Disputes weekly highlights—19 December 2024

This week's edition of Property Disputes weekly highlights includes: a Privy Council decision confirming that leases can be terminated for repudiatory breach and Court of Appeal decisions on the ‘tenant condition’, the Tenant Fees Act 2019, and the status of an unregistered landlord for the purposes of the right to manage. It also includes High Court decisions on claims for property damage by an RTM company and for remedial expenditure to prevent damage caused by continuing nuisance, and Upper Tribunal decisions on the calculation of time periods, the evidence required to impose a civil penalty, and the jurisdiction of the First-tier Tribunal to review the rent under an assured tenancy, and publication of the minutes of the Online Procedure Rule Committee.

Tenant Fees Act 2019—check-out challenge fails (Switaj v McClenaghan)

Property Disputes analysis: the Court of Appeal addressed whether tenancy fees can amount to prohibited payments under the Tenant Fees Act 2019 (TFA 2019) even though they were paid prior to the Act taking effect. The tenant sought to defend proceedings for possession by relying upon a tenancy check-out fee which had been charged with the original tenancy in 2018, arguing that the fee held-over to subsequent replacement tenancies and became a prohibited payment post-TFA 2019. The appeal relied by analogy on the position with deposits where a deposit is notionally treated as being repaid upon replacement tenancies (Superstrike v Rodrigues). The Court of Appeal dismissed the appeal and upheld the decision at first instance to distinguish Superstrike. The case helps clarify the status of tenancy fees paid prior to the Act and whether these can amount to prohibited payments post-2019. Written by Kevin Long, solicitor at Hackney Community Law Centre.

Property Disputes weekly highlights—12 December 2024

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How long is twelve months? Upper Tribunal (Lands Chamber) considers principles for calculation of time periods (Moh v Rimal Properties Ltd; Kelly v Bostall Estates Ltd)

Property Disputes analysis: These appeals (heard together) concerned two applications for rent repayment orders against landlords who had each been managing a house in multiple occupation (HMO) without a licence. Both applications were dismissed as out of time, with this being upheld on appeal. In deciding the appeal, the Upper Tribunal (UT) had to decide how the expression ‘in the period of 12 months ending with the day on which the application is made’ was to be construed. In so doing, the judge considered the leading authorities on the construction of time periods, before finding these did not cover the statutory language used. It is a useful reminder to all practitioners that a time period can be shorter than it first appears. The judge also had to decide at what point in time a defence under section 72 of the Housing Act 2004 (HA 2004) is deemed to arise for the purpose of calculating the time period. Written by Joseph Bunting and Timothy Foot, barristers, Maitland Chambers, London.

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