Introduction
Trespass is the unlawful direct and immediate interference with the possession of land or property which is in the possession of another person, or which another person is entitled to possession of. Put in the simple words, it means entry to a person’s land or property without permission.
Legal Elements
To establish a claim of trespass, certain legal elements must typically be satisfied, these are:
- Intention: Trespass requires that the defendant intentionally enters or interferes with the property of another. The defendant's act must be deliberate, purposeful, or voluntary. Unintentional or accidental entry, such as mistakenly entering the wrong property, may not constitute trespass.
- Physical or Non-Physical Invasion: Trespass can occur through physical intrusion, such as physically entering or remaining on someone else's land without permission. It can also occur through non-physical encroachment, such as placing an object onto another person's property or projecting noise or odors onto their premises.
- Lack of Consent: Trespass generally requires that the defendant enters or interferes with the property without the owner's permission or lawful authority. Consent may be express or implied, but if the property owner explicitly denies permission or if the defendant exceeds the scope of the permission granted, the element of lack of consent is satisfied.
- Exclusive Possession: The property in question must be in the lawful possession or control of the plaintiff at the time of the trespass. This element ensures that only those with a legal right to possess the property can bring a trespass claim.
- Causation: There must be a direct causal link between the defendant's actions and the interference with the plaintiff's property. In other words, the intrusion is a foreseeable consequence of the defendant’s action or omission.
The magnitude of the encroachment or interference is unimportant as long as an interference exists (see the Federal Court case of Karuppannan s/o Chellapan v Balakrishnan s/o Subban [1994] 3 AMR 2279). For example, raising the level of his own land, and subsequently builds a retaining wall which results in a disruption to the natural flow of water out of his neighbour’s land was held to be an act of trespass (see Lim Kek Ping v Thai Wah Construction and Development Sdn Bhd [2006] 5 AMR 68; [2006] 4 MLJ 309).
Legal Remedies
Remedies for trespass can vary depending on the circumstances of the case. Common remedies include injunctions (court orders to stop the trespass), damages (compensation for any harm suffered), and sometimes punitive damages (awarded to punish the trespasser for intentional or malicious acts).
Case Sample
Mr. A owned a landed property. His neighbour, Mr. B had a construction performed on his property that altered the water flow whereby Mr B directed the gutter of his roof to gush into Mr A’s compound. As a result, the water flow from the gutter subsequently caused a flood in Mr. A’s house compound. The flood had further destroyed Mr. A’s automated gate and his trees and bushes in the house compound. Mr. A, upon receipt of legal advice, had flagged the water flow issue to Mr. B and requested Mr. B to rectify the same and put things right. Mr. B refused to comply with Mr. A’s request.
Mr. A sued Mr. B for trespass under civil law on the ground of “an unauthorized direct or immediate intrusion of a physical, tangible object onto land over which the plaintiff has a right of exclusive possession”. In this case, the “unauthorized intrusion” by Mr. B was causing excess water to flow onto Mr. A’s landed house, a property over which Mr. A has a right of exclusive possession, and such “unauthorized intrusion” was intentional as Mr. B failed to take any action despite knowing the water flow issue.
Ultimately, the Court held in favour of Mr. A. Mr. B was directed by the Court to pay to Mr. A RM80,000 as damages.
Conclusion
Note that the above only provides a general overview of “trespass”. It is thus important to consult with a qualified attorney or legal professional to understand the specific elements and remedies related to trespass.