Intentional torts - Trespass to land

Learning Outcomes

After reading this article, you will be able to identify the elements required for trespass to land, distinguish it from related torts, and apply the correct legal standards for intent, physical invasion, and available defenses. You will also be able to answer MBE-style questions on this topic and avoid common exam pitfalls.

MBE Syllabus

For MBE, you are required to understand the principles governing intentional torts to land. This includes knowing the elements, intent requirements, and possible defenses. Focus your revision on:

• The definition and elements of trespass to land.
• The intent required for liability.
• What constitutes a physical invasion.
• Who may sue for trespass.
• Defenses to trespass to land.
• How trespass to land differs from nuisance and other property torts.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT required to establish trespass to land?
   1. The defendant intended to enter the land.
   2. The defendant caused a physical invasion.
   3. The plaintiff suffered actual damage.
   4. The plaintiff was in possession of the land.
2. A person throws a rock onto another’s property, not realizing it would land there. Is this trespass?
   1. Yes, because intent to enter is enough.
   2. Yes, because intent to trespass is required.
   3. No, because the person did not intend to trespass.
   4. No, because there was no physical invasion.
3. Which is a valid defense to trespass to land?
   1. Mistake as to ownership.
   2. Consent by the land possessor.
   3. Lack of intent to trespass.
   4. The land was vacant.

Introduction

Trespass to land is a classic intentional tort tested on the MBE. It protects the right to exclusive possession of real property. Liability arises when a person intentionally causes a physical invasion of land possessed by another, regardless of harm. This article explains the elements, intent, physical invasion, who may sue, and common defenses.

Elements of Trespass to Land

Trespass to land requires three elements:

1. An act causing a physical invasion of land.
2. Intent to enter or cause the invasion.
3. Causation.

Actual damage is not required.

Key Term: Trespass to Land
An intentional tort where the defendant causes a physical invasion of land possessed by another, regardless of harm.

Intent Requirement

The defendant must intend to enter the land or cause a physical invasion. The defendant does not need to intend to trespass or know the land belongs to another. Mistake is not a defense.

Key Term: Intent (Trespass)
The intent to perform the act that results in entry or invasion, not necessarily intent to trespass or cause harm.

Physical Invasion

A physical invasion occurs when the defendant enters the land, causes another person or object to enter, or places something on, under, or over the land. Entry can be direct (walking onto land) or indirect (throwing an object).

Key Term: Physical Invasion
Any tangible entry onto, above, or below the surface of land, including by persons, animals, or objects.

Who May Sue

Anyone in actual or constructive possession of the land may sue for trespass, including tenants. Owners out of possession generally cannot sue unless no one else is in possession.

Who May Be Liable

Any person who intentionally causes a physical invasion can be liable, including those acting through others or objects. Children and those lacking capacity can be liable if they have the required intent.

Damages

No proof of actual harm is required. Nominal damages are available. If actual harm occurs, compensatory damages may be awarded. Punitive damages may be available for malicious trespass.

Defenses to Trespass to Land

Common defenses include:

• Consent: Entry was permitted by the possessor.
• Necessity: Entry was necessary to prevent serious harm (public or private necessity).
• Legal authority: Entry was authorized by law (e.g., police with a warrant).

Mistake as to ownership or boundaries is not a defense.

Key Term: Consent (Trespass)
Permission by the possessor of land for entry, which negates liability for trespass.

Key Term: Necessity (Trespass)
A defense where entry is justified to prevent serious harm, either to the public (public necessity) or to oneself or one's property (private necessity).

Distinguishing Trespass from Nuisance

Trespass always involves a physical invasion. Nuisance involves substantial and unreasonable interference with use or enjoyment of land, which may be intangible (e.g., noise, odors).

Key Term: Nuisance
A tort involving substantial and unreasonable interference with another's use or enjoyment of land, often without physical invasion.

Worked Example 1.1

A hiker mistakenly believes a field is public land and walks across it. The field is privately owned and posted with "No Trespassing" signs. The owner sues for trespass. Is the hiker liable?

Answer: Yes. The hiker intended to enter the land, and mistake as to ownership is not a defense. Actual damage is not required.

Worked Example 1.2

A person throws a ball onto a neighbor’s land, intending only to throw it far. The ball lands in the neighbor’s yard. Is this trespass?

Answer: Yes. The intent required is to do the act that causes entry, not to intend a trespass. Throwing the ball was intentional, and it physically invaded the land.

Exam Warning

On the MBE, do not confuse intent to trespass with intent to enter. The defendant need only intend the act that causes entry, not intend to violate rights or cause harm.

Revision Tip

Remember: Actual damage is not required for trespass to land. Nominal damages are sufficient for liability.

Key Point Checklist

This article has covered the following key knowledge points:

• Trespass to land protects the right to exclusive possession of real property.
• Elements: physical invasion, intent to enter or invade, causation.
• Intent to trespass or cause harm is not required.
• Physical invasion can be direct or indirect.
• Anyone in possession may sue; actual damage is not required.
• Defenses include consent, necessity, and legal authority.
• Mistake is not a defense.
• Trespass is distinct from nuisance, which may not involve physical invasion.

Key Terms and Concepts

• Trespass to Land
• Intent (Trespass)
• Physical Invasion
• Consent (Trespass)
• Necessity (Trespass)
• Nuisance