You cannot enter someone else’s land without their permission; nor can you dump rubbish on land without the land owner’s consent, nor dig below another person’s land as land includes everything above and below the ground. These acts are trespassing. Trespass is a civil wrong and you can be sued for doing it.
Be careful when ejecting a trespasser from your land as they can sue you for assault if you use too much force.
By law, some officials (e.g. police, meter readers, post office officials, council officials, fire fighters) are allowed on your land without permission.
If you deliberately or carelessly do something that directly causes interference with someone else’s land, you commit a trespass. It is not usually a crime, but is a civil wrong, and you can be sued for doing it even if you did not cause any damage by trespassing.
The most common example of trespass is when you go onto someone’s land without their permission. It is also trespass to dump rubbish on someone else’s land. Land includes everything above and below the ground, so you might be trespassing if you burrow under someone else’s land.
To bring an action against someone for trespass, you have to show that you have a right to exclusive possession (rather than ownership) of the land on which the trespass occurred.
Signs that have the words “Trespassers will be prosecuted” written on them are not strictly accurate. Technically you can only be prosecuted if you commit a crime.
The crime of trespass is dealt with under section 9 of the SO Act. A person can be guilty of trespass if they:
• trespass in a “public place” and neglect or refuse to leave after being warned;
• enter a “private place” or “scheduled public place” without express authority unless for a legitimate purpose; or
• neglect or refuse to leave a “private place” or a “scheduled public place” after being given a warning and do not have a lawful excuse.
The terms “public place” and “scheduled public place” are defined in section 3 of the SO Act.
You are allowed to eject a person who comes onto your land without your permission. You must not use any more force than is reasonably necessary to do this. Obviously, you should first ask the person to leave before you consider any more drastic action. If you use too much force, you may be guilty of assault and could be committing a crime or be sued for damages for any injuries the “trespasser” suffers as a result of your actions.
If you can convince a court that someone has trespassed on your property, it can order the trespasser:
1 to stop trespassing now, and to never trespass again (this is called an injunction); and/or
2 to pay you compensation.
If someone sues you for trespass you may have a defence if any of the following has occurred:
1 you were on the land with the permission of the person who is suing you;
2 you have been authorised by some law to go onto the land (see “Officials on your land”, for examples);
3 you have gone onto the land to stop a nuisance (see “Nuisance”); or
4 you have gone onto the land to get back goods that belong to you. This only applies if the goods have been put there by or with the help of the person on the land or someone who has stolen the goods.
The law allows some people to come onto your land without your permission.
Police are allowed onto your land if they have a warrant, which they should show you when seeking entry to your land. If they don’t have a warrant, they may only enter your land if you invite them, or if particular circumstances arise, such as making an arrest, stopping a breach of the peace or ensuring that the SO Act is being complied with (see “Power to search without warrant” in Arrest, search, interrogation and your rights).
Gas, water and electricity meter readers, post office officials, health officers, and council officers are also allowed to come onto your property. All of these people should show you some proof of identity, and are allowed onto your land only for specific purposes related to their jobs.
Licensed surveyors (and people acting under their direction and supervision) are also permitted onto your land for the purpose of carrying out a survey. Even then, there are restrictions as to giving notice and the time at which entry is permitted.
The fire brigade can come onto your property and do whatever it thinks is necessary to stop a fire, including deliberately damaging your property. No one else is allowed to cause any damage to your property.