Rights and duties associated with land
Rights and duties associated with land Trespass to land 1. Definition Trespass to land is a voluntary and positive act of the defendant that directly and intentionally or negligently interferes with the plaintiff’s exclusive possession of land. It is actionable per se. 2. Is what is being interfered with ‘land’? Land includes The surface of the land Fixtures (anything attached to or growing on the surface of the land) The ground beneath the land The airspace above the land o Sending something over land that does not touch the ground or fixtures is still trespass (Davies v Bennison) o The rights of the owner in the airspace above his/her land will extend to such height as is necessary for the ordinary use and enjoyment of the land and the structures on it (Bernstein v Skyviews), including to the height necessary for any ordinary use of the land that the plaintiff may see fit to undertake in future (LJP Investments v Howard Chia) o Courts take a liberal view of what constitutes ordinary use (Graham v KD Morris: crane 62ft above house found to interfere with normal use) o Flying a plane over a property in compliance with Air Navigation Regulations will not ground a claim in trespass: Wrongs Act 1958 (Vic) s 30 3. Does P have standing to sue? To be able to sue, P must -
Be entitled to exclusive possession of the land o Eg owner, tenant o A mere licence to be one land does not give someone a right to sue in trespass, because a licence does not confer a right to exclusive possession of the land unless stated in the terms of the licence(Vaughan v Shire of Benalla). o A person may have exclusive possession of the land if he/she has had actual possession of the land for an extended length of time and has done ‘acts of ownership’ can be found to have exclusive possession of the land and thus a right to sue in trespass to land against all except those with better title (Newington v Windeyer). - Be in actual (or constructive) possession of the land o Actual possession P will have actual possession of the land if he/she has physical control over the land and intends to exercise control over it (Wilson v Lombank). o Constructive possession P will have constructive possession if • he/she had physical control of the good but no longer has physical control, but has not evinced an intention to give up possession of the land & noone else had assumed possession of the land (eg out of the house or on holiday) Persons with no standing to sue at the commencement of a trespass may still sue upon -
Be entitled to exclusive possession of the land o Eg owner, tenant o A mere licence to be one land does not give someone a right to sue in trespass, because a licence does not confer a right to exclusive possession of the land unless stated in the terms of the licence(Vaughan v Shire of Benalla). o A person may have exclusive possession of the land if he/she has had actual possession of the land for an extended length of time and has done ‘acts of ownership’ can be found to have exclusive possession of the land and thus a right to sue in trespass to land against all except those with better title (Newington v Windeyer). - Be in actual (or constructive) possession of the land o Actual possession P will have actual possession of the land if he/she has physical control over the land and intends to exercise control over it (Wilson v Lombank). o Constructive possession P will have constructive possession if • he/she had physical control of the good but no longer has physical control, but has not evinced an intention to give up possession of the land & noone else had assumed possession of the land (eg out of the house or on holiday) Persons with no standing to sue at the commencement of a trespass may still sue upon -
