How do I deal with casual trespass

Question

Suppose that someone walks on to my land and refuses to leave. Trespass is not a crime, so (as I understand it) the police can't help. I'm not allowed to use physical force to eject them because that would be assault. Assuming that what they are doing does not rise to the level of aggravated trespass or any other crime, what recourse do I have?

Edit: in answer to a comment.

I don't have a specific type of land in mind. Intuitively trespass on someone's back garden seems different to trespass on a farmer's field, but I haven't seen anything in law which makes that distinction. If there are such distinctions then it would be useful to know what they are.

I'm also unsure exactly what the limit of the word "building" is in burglary law. Does a garden fence or wall count as a building? If so, does scaling a garden wall count as the "entering a building" component of burglary?

Answer 1

The law on trespass to land is not completely straightforward. Trespass to land can include the unlawful presence of a person, which is what you are interested in, along with things that you may not think of as trespass, such as leaving objects on your property.

You do not need to prove any damages in order to bring a claim: trespass is actionable per se in English law. However, if there is no actual harm, the damages awarded may be nominal. The courts may also grant an injunction to prevent the trespasser from continuing to trespass or returning.

The trespasser may have several defences in law, such as a licence to enter (in other words, permission), necessity, or exercising a legal right. An obvious example of licence to enter would be a shop: the owner has given (implied) permission for you to enter for the purposes of shopping, but may withdraw that licence at any point and ask you to leave.

Dale M has elaborated on some of the legal rights that are a defence to trespass, such as open access land and public rights of way.

There are several remedies to trespass to land in addition to claiming damages or an injunction. In Halsbury's Laws of England, vol. 97 (2015), para 588, it is stated that:

If a trespasser peaceably enters or is on land, the person who is in, or entitled to, possession may request him to leave, and if he refuses to leave may remove him from the land, using no more force than is reasonably necessary.

You might think of a nightclub bouncer ejecting an unwanted and unruly customer as an example of this: the bouncers act as agents for the person in possession and may use reasonable force.

In certain circumstances trespass may also be a criminal offence. For example, trespassing in a residential property may be in violation of the Criminal Law Act 1977, s. 7(1):

(1) Subject to the following provisions of this section and to section 12A(9) below, any person who is on any premises as a trespasser after having entered as such is guilty of an offence if he fails to leave those premises on being required to do so by or on behalf of—

(a) a displaced residential occupier of the premises; or
(b) an individual who is a protected intending occupier of the premises.

Trespass to land therefore has both elements in criminal law, and in tort, and in some cases trespass is a crime. Dale M also rightly points out burglary, and in response to your question about the garden, I do not believe that this would be considered a building. The CPS reference B v Leathley, where the test of a building is stated as "a structure of considerable size and intended to be permanent or at least to endure for a considerable period".

Answer 2

Offer them a cup of tea

In England and Wales, people have extensive rights to access private land so long as they don't interfere with the owner's lawful use of that land.

You have the right to access some land for walking or certain other leisure activities.

You can:

• use public roads and pavements or public rights of way, for example footpaths or bridleways

• use your right to roam on open access land including mountains, moors, heaths, downs, common land and some land around the England Coast Path

If neither of these apply, you may still be able to access private land if:

• the land was used as a public right of way in the past - check old maps and documents

• the land was accessed by the public for at least 20 years and nobody has asked them to stop

• the landowner has given permission (‘permissive access’)

It is a very rare piece of rural land to which at least one of these doesn't apply in England and Wales.

Obviously, this is not going to be applicable to most urban and suburban land and your solicitor should have checked that an ancient highway doesn't run through your living room before you bought the place. If it does, then you have to let people walk through your living room - you can ask them to wipe their feet first.

If they are actually trespassing then unless they damage your property you have no right to damages. If they commit a crime such as aggravated trespass or burgulary, you can call the police. You can also take them to court to get an order requiring them to leave and, if you are wise, prohibiting them from returning.

Or, you can just take the opportunity for a cup of tea and a chat.