Last updated 26 September 2024

Trespass is entering or remaining on someone else’s property without permission or a lawful excuse and is a civil wrong.

Trespass may also be a criminal offence.

An example of a lawful excuse is a member of the emergency services coming on to a property in the execution of their duties. Police officers have wide powers to legally enter premises. Others who are authorised to enter premises for specific purposes include gas and electricity employees, and health and agriculture inspectors.

It is generally implied that a homeowner consents to any person entering using the usual point of entry to reach the front door, unless there is a sign indicating the lack of consent or a locked door or gate restricting access to the front door. If informed by the home owner to leave, the person must do so as this means that the implied consent has been revoked.

Trespass can also include burrowing under land or suspending an object over the land. Examples of trespass from court cases include:

  • with a digger, excavating between one and two metres into the other person’s property
  • dumping that dirt in front of the person’s property
  • low flying a drone over the property
  • parking a car on the plaintiff’s land
  • construction intrusion onto plaintiff’s land.

Removing the trespasser

An occupier can eject a trespasser from the property but is not allowed to use more force than is necessary. Normally, no force is considered necessary to defend a property against a trespasser. However, if the trespasser uses force during or after entry, or assaults the occupier, the occupier can use such force as is necessary to protect or defend themselves and the property.

However, physical engagement carries significant risk. When an occupier uses greater force than the court considers reasonable in the circumstances, the trespasser may sue the occupier for assault. For example, an unarmed person trespassing in another person’s garden might be able to sue the occupier if the occupier used unreasonable force such as by shooting at them. The occupier may also be charged by police for assault.

Civil action for trespass to land

An occupier in actual possession of a property (or an owner who retakes possession) can sue for trespass. It is not necessary to prove that the trespasser caused any damage to the land unless compensation for damage is claimed. An injunction to prevent future trespass by the person can be sought but, as noted at the beginning of this chapter, this would involve the District or Supreme Court which will be costly and not without risk. An injunction would not normally be sought unless the trespass is repeated or ongoing. It would be wise to seek legal advice before taking such action.

Defences to an action of trespass

The defences to an action in trespass are:

  • permission of the owner or occupier
  • lawful excuse such as a person able to enter a property for legitimate purposes under a law or regulation, such as emergency services
  • necessity such as to take action in relation to an emergency on the land and the person could not reasonably get consent
  • the person acted involuntarily or it was a genuine accident
  • mistaken belief and the mistake was reasonable (this is difficult to establish in practice).

Prosecution of trespassers

Many premises display a notice stating that ‘trespassers will be prosecuted’. It is an offence under the Criminal Code Act 1899 (Qld) for a person to unlawfully enter, or remain in, a dwelling or the yard for a dwelling or a yard or place used for business purposes, having no lawful right or justification to enter or remain there. This would involve police being notified and police would then decide whether to charge the person with an offence and take the matter to a Magistrates Court. The owner/occupier of the land becomes a witness in the police case.

The occupier has the right to sue under civil law for trespass whether or not police bring criminal proceedings. Under the civil law, the occupier takes the matter to court themselves.