Last updated 20 July 2016
Trespass is a civil wrong and some forms of trespass may also constitute a criminal offence. The most common form of trespass is entering or remaining on land without the permission of the owner. Trespass can also include burrowing under land or suspending an object over the land.
Suing for trespass
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.
Prosecution of trespassers
Many premises display a notice stating that trespassers will be prosecuted. This notice is misleading. Prosecution involves a criminal charge. The notice really means that civil proceedings will be commenced against the trespasser or that information about an alleged or suspected trespass may be passed on to police.
Trespassing can be a crime in some circumstances. People who are in or on any premises without a lawful excuse may be guilty of an offence.
Authorised entry onto land
Police officers have wide powers to enter premises without being liable to prosecution for trespass. Some other officials (e.g. gas and electricity employees, post office officials, and health and agriculture inspectors) are also specifically authorised by various laws to enter premises for certain purposes without being liable for trespass.
Defences to an action of trespass
The defences to an action in trespass are:
- the authority of law
- abatement of some types of nuisance (e.g. a spreading fire)
- permission to enter onto the land given by the person entitled to possession.
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.
Remedies against a trespasser are:
- ejectment, using sufficient force only—an occupier can eject a trespasser from the property but is not allowed to use any 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, the occupier is justified in using such force as is necessary to protect themselves and the property. If the trespasser assaults the occupier during the course of the ejectment, the occupier may need to act in self-defence. When an occupier uses greater force than the court considers reasonable in the circumstances, the trespasser may sue the occupier for assault. So, an unarmed person who trespasses in another person’s back garden might be able to sue the occupier if the occupier used unreasonable force (e.g. shooting at the person). The occupier may also be charged by police for assault
- a warrant of possession—the Queensland Civil and Administrative Tribunal may issue a warrant of possession to a lessor allowing them (or a police officer) to recover possession of their premises at the expiration or termination of a tenant’s lease (Residential Tenancies and Rooming Accommodation Act 2008 (Qld)) (see the Residential Tenancy chapter)
- an appropriate order from a court—depending on the legal action taken, it may be possible to obtain an order for either ejectment, an injunction or other order restraining a person from entering or remaining on a particular piece of land
- a court action for damages.
When ownership of land is in dispute, the necessary District or Supreme Court proceedings will often be lengthy and expensive.