Trespass Claims
Trespass claims fall into two categories:
- Actual physical Infringement
- Transitory Interference
Actual physical Infringement
Example: ‘Weekenders’ and ‘Cold Comfort’ are detached houses on adjoining plots. Cold Comfort gets planning permission for an extension to run down the side of their property. They begin the works while ‘Weekenders’ are away. They remove the boundary fence and install the footings 100mm (4 inches) over the line of the old fence. The owners of ‘Weekenders’ complain. ‘Stop blatherin’ say the owners of Cold Comfort, ‘the wall will be on the boundary line.’ The owners of Cold Comfort are wrong. The wall may well be on the boundary line but the footings are a trespass.
Transitory Interference
Weekenders have a paddock at the back. Access to it by a 4m wide track down the side of Cold Comfort. Weekenders have a right-of-way over the track ‘for all purposes with or without vehicles’. Cold Comfort's plans involve a bathroom 600mm out from side onto the track. After all, Coldcomfort’s owners say, ‘the land be ours and Great Uncle Perce needs a bath.’.The land may well be Cold Comfort's, but the extension for the bathroom is an interference with the right of way.
Cold Comfort must change their plan or face an action for trespass.
What can Weekenders do?
The footings are a simple trespass. So long as Weekenders do not delay, they will get a court order ordering the footings to be removed. BUT, if they delay, and allow the wall to be built they will not get an order for its removal and instead only damages.
The interference with the right-of-way is also a trespass. Weekenders have a 4m wide right-of-way. If Great Uncle Perce’s bathroom is built it will be reduced in width by 600mm.
Again, speed is everything. Weekenders need:
- An Order stopping the work and removing the trespassing structures;
- damages, but these are probably less important;
- their costs.
A Pre-action letter stating Weekenders’ case should be served immediately on Cold Comfort, and if the works continue, an immediate application to the court for an injunction.
If you have a trespass problem consult a specialist