Trespass is a legal concept, and refers to intrusion into another’s property. There are three forms of trespass:
- trespass to land – entering another person’s property without permission to do so
- trespass to chattels – interference with another person’s lawful possession of chattels (private possessions) without permission to do so
- trespass to the person – physical interference with another person without permission to do so
Trespass is a civil offence under the law of tort. A trespass to land offence has been committed as soon as a person intentionally enters another person’s land without permission, even where no harm occurs.
The owner of the land may bring an action against the trespasser, and may be awarded damages or an injunction to prevent further acts of trespass (at the discretion of the court). As trespass is a civil rather than criminal offence trespassers cannot be prosecuted, despite countless signs across the country proclaiming otherwise!
Permission to enter or occupy land need not amount to a tenancy, and may be given by anyone in a position to grant the authority, such as the owner or their agent. A tenant may even be in the position to grant another person permission to occupy the property if the tenancy agreement allows this.
Not only does the original entry on to the land constitute trespass, but so does the continued presence of the trespasser or his belongings at any time, unless he has been given permission to remain after the original trespass. Possession may be either express or implied by his conduct (acquiescence). A person who has been given permission to enter or occupy land is a licensee. For further information on licences, see Licences.
Even if the original entry on to the land was with permission, so was lawful, a trespass will be committed by remaining there without the owner’s permission. Trespass will also be committed where a person has been given permission to enter land for a specific purpose, but then does something else when on the land.
A tenant has permission to occupy the property, but the expiration of their tenancy brings an end to this permission. As a result, generally a tenant whose tenancy has ended becomes a trespasser if they remain on the property.
However, when the fixed term of a Housing Act 1988 tenancy expires, the tenant will not lose their permission to occupy the land. As soon as the fixed term of an assured tenancy or assured shorthold tenancy (the default tenancy created) expires, a statutory periodic tenancy will arise. This tenancy again gives the tenant permission to occupy the property, and this means that they do not become a trespasser.
Where a landlord obtains a possession order against a tenant with an assured or assured shorthold tenancy but then allows the tenant to remain in the property, the tenant will become a tolerated trespasser. A tolerated trespasser may remain in occupation on terms such as payment of rent plus gradual repayment of rent arrears.
However, it is vital that any payments are accepted by the landlord not as rent but as mesne profits, which are damages for unlawful occupation. If any payment is accepted as rent, this may lead to a presumption that the landlord has granted the tenant a new tenancy. The exception to this, however, is assured and assured shorthold tenancies where rent can safely continue to be accepted as rent until a possession order is granted by the court. This is because a statutory tenancy is deemed to exist until the tenancy is brought to an end by the court (section 5(2) Housing Act 1988).
Where the landlord is not particularly bothered about recovering possession of the property, tolerated trespassers may continue occupying them for years without realising that they are not actually tenants any longer.
If, during the term of a tenancy, the landlord has the right to enter the property for a specific purpose, such as to collect rent or inspect for repairs, the landlord would be committing trespass if he entered the property for any other purpose. He would not have permission to enter for other purposes, and the fact that the landlord owns the property does not prevent him from being a trespasser if he enters without permission.
Duty of care
Under section 3 of the Occupiers’ Liability Act 1984, the occupier of land owes a duty to take such care as is reasonable in all of the circumstances to see that people who are not lawful visitors do not suffer injury on the premises. This duty is owed where there is a risk against which the occupier may reasonably be expected to offer some protection and the occupier knows or has reasonable ground to believe both that a danger exists and that a person is in or may come into the vicinity of the danger. Where a tenant has exclusive possession of the rented property, he is regarded the occupier. This means that it will be the tenant rather than the landlord who is held liable under this Act. The landlord is only the occupier of any part of the property over which he has retained control.
Eviction of trespassers
Where trespassers are occupying another person’s land, the protection from Eviction Act 1977 requires the owner to bring court proceedings if he wishes to remove them. This action can be taken at any time.
Possession proceedings against a trespasser do not require the landlord to identify the trespasser; the landlord can issue proceedings against named persons on their own and/or against unknown persons.
A summons is issued, stating the landlord’s interest in the property, that the property is being occupied without his consent and, where applicable, that the landlord does not know the names of some or all of the people on the property.
Once a summons has been served, there is a delay of five days, for residential property, before a court hearing. In respect of non-residential property, this delay is just two days.
If a court finds that the occupiers are, indeed, trespassers, it must make an immediate order for possession. (Rules of the Supreme Court Order 113.) However, the landlord will usually require eviction to be effected by court bailiffs. When bailiffs evict the trespassers, they must turn out all persons in the property, regardless of whether those people were parties to the proceedings. This includes people who moved into the property between the date of the court order and the actual eviction date.
Although trespassers have no rights of occupation, they are, however, protected from violent eviction by section 6 of the Criminal Law Act 1977. This provides that an offence is committed by any person who uses or threatens violence against either people or property in order to gain entry into premises. However, an offence is not committed if the person seeking entry does not at the time of the attempted entry know that there is someone present on the premises and that that person is opposed to the entry.
Since 2012 under s144 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 landlords can now notify the police that their property is occupied by trespassers as this is now a criminal offence so do not necessarily need to use the civil court system. However, much will depend on the willingness of the police to intervene and, where the police are not willing to make arrests, landlords will need to follow the civil law rules which are still in force.