LIA1005/LXEB1111

INTENTIONAL TORTS:
TRESPASS TO LAND
Session 2016/2017

Dr. Nadhratul Wardah Salman

Faculty of Law, University of Malaya
 DEFINITION

1. Unreasonable interference with

another’s possession of land (Norchaya,
2010)

It is an intentional and unlawful entry

upon or direct interference with the land
in another’s posession
 DEFINITION OF LAND

S.5 National Land Code (NLC):

Land includes the surface of the earth and all
substances; the earth below the surface and all
substances; all vegetation and other natural products
that are on or below the surface; land covered by
water.

(the actual soil/dirt, the structures/plants on it and the airspace

above it are all included)
 THE ACTIONS OF TRESPASS

 entering directly upon land in the possession of

another person, or
 remaining on land in the possession of another
person, or
 placing or projecting any object on land in the
possession of another person
 in each case without lawful justification.

Entry includes entry on land, below or above the

ground or the air space above the ground.
 THE INTEREST PROTECTED

‘A man’s home is his castle’

S.44(1)(a) of NLC:
A person has the right to the exclusive use and enjoyment of so
much of the column of airspace above the surface of the land and
so much of the land below that surface as is reasonably necessary
to the lawful use and enjoyment of the said land

Art 13 (1) FC: No person to be deprived of his right over his

property except as provided under the law.

The tort is actionable per se, so no proof of

damage needed.
 THE INTEREST PROTECTED cont

 S 44(1) (a), s 48 & s 341 NLC

 Registered proprietor is fully protected
Haji Jaafar Haji Hashim v Rohani bte Ab Latip [2006]
Held: Registered owner’s right prevail over licensee’s.

 Trespass to land protects possessory rights:

 Right to exclude others from one’s property.
 Right to exclusive possession.
 Possession vs Ownership
 POSSESSION is the right to have something under your
immediate control or use. Persons who are in possession
might be able to enjoy their occupation of the land for some
time but they will have problems in dealing with the land and
creating recognised legal interests in the land.
 Ownership is a matter of legal right
 Possession is a matter of fact.
 Rights of ownership normally include the right to
possession. However, that right to possession might be
lessened by something the owner has done. He or she might
have given away rights of possession in the property. Or, as a
matter of fact, someone else might simply have assumed
possession of the property with or without the owner’s
knowledge.
 Possession vs Ownership

OWNERSHIP normally indicates that a person has:

 the right to possession, or to actual physical control, of the
relevant property.
 It is a right which is superior to possession; the right to sell,
or give away, the property in question or to leave it to
others by will when the owner dies.
For example, owners can grant a lease of their property or
create a trust over it or mortgage it to the bank as security for a
loan over something which is property.
 It is the highest legal right with respect to private property
that is recognised by a legal system.
 The claims of the owner comes second, after the claims of
the State.
 Possession vs Ownership

 Ownership is always legitimate or "legal".

 Possession might be either legitimate or

illegitimate. But even when it is not legitimately
gained, possession can give rise to certain legal
rights and protections. Thus even a person who has
"stolen" another person’s property has certain
rights, including rights in trespass.
 Who Can Sue?
 The law of trespass to land is concerned with the
protection of a person’s right to possession of land.
It is not so much concerned with the protection of
ownership of the land.
 The plaintiff need not be the owner of the land as
registered ownership does not necessarily connote
actual possession.
 Thus the possessor (rather than the owner!) of the
land has the primary right to sue in trespass.

Who can sue in trespass - landlord or tenant?

 PURPOSE

Purposes of sueing can be:

 to remove unwanted intruders
 to settle dispute over title
 To seek compensation
 To recover land from which plaintiff was
unlawfully ejected
 Scenarios

 If someone comes onto another’s land without the permission of the

person who has possession of that land, that is trespass. If that entry is
by mistake, then it may be unintentional.
 If a person should have permission in order to enter onto the land but the
permission is properly revoked, and that person then remains on the land
without permission, that is a trespass.
 If someone throws some object onto land which is in the possession of
another, then that is a trespass.
 Leaving the thrown object on the land is also a trespass, just as a person
staying on the land without consent is a continuous trespass.
 If someone fires a gun and the bullet passes across my land, that is a
trespass against my land. Firing across my land again is a second
trespass.
 ELEMENTS

2 elements of trespass to land:

1. The mental state of the defendant

2. Interference
 Mental State

1. The mental state of the defendant

 Defendant must have intended to trespass on
another’s land.
 The intentional entry onto the land of another
(If no intention to trespass, there is no intentional entry)
 The act of entry is done voluntarily

Basely v Clarkson [1682]

Smith v Stone [1647]
Gilbert v Stone [1647]
 Interference
2. Interference
Unreasonable interference – so unreasonable that the
Plaintiff could not tolerate it anymore.
It must be a direct or the immediate act of the
defendant.
Gregory v Piper [1829] – rubbish rolled onto the land was foreseeable,
hence Df was liable in trespass.
4 circumstances of interference
1. Entering Land in Plaintiff’s Possession
2. Remaining on Plaintiff’s Land
3. Placing a thing on Plaintiff’s Land
4. Interference with Airspace
 Interference
1. Entering Land in Plaintiff’s Possession
 Conway v George Wimpey & Co Ltd [1951]
 Tan Wee Choon v Ong Peck Seng [1986]

2. Remaining on Plaintiff’s Land (continuing trespass)

 A continuing trespass is a failure to remove an object (or the
defendant in person) unlawfully placed on land.
 It will lead to a new cause of action each day for as long as it
lasts:
 Tay Tuan Kiat v Pritam Singh [1987]
 Cheah Kim Tong v Taro Kaur [1989]
 Holmes v Wilson and others [1839]
 Konskier v Goodman Ltd [1928]
 Interference
3. Placing a thing on Plaintiff’s Land
 Konskier v Goodman [1928]
 Ladang Tai Tak (KT) Sdn Bhd v Suppiah a/l Andy Thavar & Ors
[1999]
 Yap Lai Yoke v Chin Fook Wah and Connected Case [1984]

4. Interference with Airspace

 Kelsen v Imperial Tobacco [1957]
 Wandsworth Board of Works v United Telephone [1884]
 Lord Bernstein of Leigh v Skyviews and General Ltd [1977]

• Read s.19 of the Civil Aviation Act 1969 – that gives rise to
strict liability
 Remedies
Remedies include:

 Damages (which will be nominal if there is only

slight harm to land).

 An injunction to prevent further acts of trespass (at

the discretion of the court).

 An action for the recovery of land if a person has

been deprived of lawful possession of the land
JUST A REMINDER …
 THANK YOU

The lecturer can be contacted at:

wardah.class@yahoo.com