What is trespass?
- What is trespass?
- What can I do about trespass?
- Can I evict a trespasser myself?
- Can a trespasser claim for injury on land?
- Is there a limited time to complain to the courts?
- What happens if there are a series of owners or a series of squatters?
- What happens to a trespasser not evicted after the limitation period?
- Can a squatter become an owner?
- Can I lose my land by giving others permission to use it?
- What is the critical criteria for title by possession?
- What are the other requirements for title by possession?
- How do you establish squatting?
- How do you avoid a claim for adverse possession?
- Are squatters subject to the subdivision rules?
- How do I claim part of a title or a changed boundary?
- Can squatter’s rights arise from some partial use of a property?
- If I don’t use a right to an easement, can I lose it?
- Are squatter’s rights fair?
- Can I get title to land occupied without deeds or without squatting?
- Not a complete statement of law
- Sample Agistment Agreement
A trespass is a wrong against the citizen and the State. If you are the owner or lawful tenant of land, you are entitled to occupation of the land. If without your permission someone else comes onto the land e.g. by driving a car over the land or by walking across it or allowing animals or vegetation onto it, they have committed a wrong, or a trespass, against you.
What can I do about trespass?
An owner or occupier may require a suspected trespasser to give his name and address. Trespass involving buildings may constitute a crime such as burglary or breaking and entering. There are separate offences such as defacing a wall or damage to property. Even if only land is crossed, there may be an offence under the Police Offences Act. Police may take court action if appropriate. Police can arrest and forcibly remove a trespasser but must first give the trespasser the chance to leave voluntarily. Police are usually reluctant to be drawn into disputes between neighbours if the facts are unclear. The victim of a trespass can take direct action through the courts to prevent further trespass in the future. A restraint order from the Magistrates Court will order the offender not to cause further breaches of the peace. It may contain specifics about not approaching the victim or coming within a defined area of the victim or the victim’s land. With such an order in place, any breach allows the Police to intervene immediately and constitutes a serious offence. If there is a significant issue requiring determination of land rights, the Magistrates Court may not be able to resolve it and it may need to be dealt with through the Civil Courts. If the trespasser has caused any damage, the victim may claim the loss from the trespasser. If the trespasser refuses to pay, the victim can pursue court action for damages.
Can I evict a trespasser myself?
If the trespass is by vegetation, you are entitled to trim back the vegetation so that it does not cross your boundaries and is kept off your property. If there is a significant cost in you doing so, you may be entitled to recover that from your neighbour. If animals trespass onto your property you have the right to have them removed and impounded by Council. There are some limited rights to destroy dogs trespassing on land, particularly where they are attacking stock. Great care needs to be taken before exercising any self help rights because if the necessary factual preconditions don’t exist, the exercise of right becomes wrongful and the victim becomes the wrong doer. If someone wrongfully comes on your land, you are entitled to use reasonable force to prevent them from entering, and to evict them if they have entered. It can be difficult to know what is reasonable force in the circumstances. Great care needs to be used before evicting or resisting a trespasser by force. If excessive force is used to evict the trespasser it is the land owner or occupier that becomes the wrong doer and could themselves be responsible for criminal or civil penalty. For this reason, it is usually better to leave the use of force to the Police and officials of the court.
Can a trespasser claim for injury on land?
Owners and occupiers have a general duty to take reasonable care with their property to avoid injury to visitors. The test is what is reasonable. That duty can extend to trespassers. It may be reasonable for council to fence a sewerage pond next to a kindergarten but unreasonable for a farmer to fence a dam in the middle of his 500 acre property. What is reasonable for a trespasser may be different from what is reasonable for other visitors. A farmer may need to fence if he is charging families to fish on his property.
Is there a limited time to complain to the courts?
In most cases the courts require that any complaint be brought before the courts within a reasonable time. If an issue is left outstanding for too long, the right to claim against the wrong doer may be lost. The courts say it is difficult to investigate matters when many years have passed and unfair for a victim to call up long forgotten injuries. For example: if you had punched me in the face at a hotel in 1980 and I left it until 1998 to complain, the courts would quite sensibly say that I had been too slow in pursuing my rights and it was too difficult to go back and review matters so long passed. I would not be able to pursue my old claim. The rules on the limitation of actions give parties limited time to complain about wrongs done to them. These same rules of limited time for complaints apply to trespass. The time limits vary according to the circumstances. The basic time limit for trespass over private land is 12 years. Longer periods apply if the victim is subject to some disability such as a mental incapacity or for a number of other possible reasons is unable to respond. The time limit for Government land is 20 years.
What happens if there are a series of owners or a series of squatters?
The period of occupation can be made up of a series of squatters each occupying the land in turn. If one person occupies the land for 7 years and sells his right to that date to another squatter who occupies for a further, say 7 years, the second squatter can take account of the period of occupation of the first and have an occupancy period of 14 years. Changes in the registered owner during the period of squatting do not break up a period. The registered ownership of property could change hands a number of times during the period of squatting, but provided the minimum squatting period is served squatters rights would still prevent the final registered owner from suing in trespass.
What happens to a trespasser not evicted after the limitation period?
A trespasser of sufficiently longstanding may then be accepted as being in possession of the land. The otherwise rightful owner may, because of the delay, not be entitled to evict the trespasser. The trespasser then is entitled to remain on the land. This right is known colloquially as a squatter’s right. The law refers to this sort of occupation of land as “adverse possession”
Can a squatter become an owner?
Because the original owner has lost his rights to eject, the person who has adverse possession of the block effectively ends up as the owner of the property. The person who has thus obtained adverse possession can make application to the Land Registry and, if they can prove the circumstances of the long use adverse possession, have the title transferred to them.
Can I lose my land by giving others permission to use it?
The trespasser’s rights start with a wrongful action. The fault of the rightful owner is to fail to defend his rights against that wrongful action for a long time. If the owner has given permission, the possession is not wrongful or adverse and the question of squatter’s rights does not arise. A lease, no matter how long, will not give rise to squatter’s rights because the possession is with the true owner’s consent under the lease and therefore not wrongful. An occupation under a lease is thus not adverse possession.
What is the critical criteria for title by possession?
Any period during which the owner has paid Council rates is disregarded for the time to acquire title to land by possession. Who has paid the rates is critical.
What are the other requirements for title by possession?
In determining an application for title based on possession, the Recorder of Titles must consider all the circumstances of the claim and the conduct of the parties including:
- whether the applicant has enjoyed possession as of right;
- whether the enjoyment was by force or secret, or whether any written or oral agreements had been made;
- the nature and period of possession;
- the improvements on the land including when and by whom they were erected;
- whether the land has been enclosed; and
- whether the applicant has acknowledged ownership, paid rent or made other payment in respect to the land.
The application for title based on possession needs evidence in support from at least one other person and usually a plan of survey. Before making an application the applicant must:
- give notice in a locally published newspaper;
- give notice to any person with an interest in the Register;
- give notice to any person with an unregistered interest lodged with the Recorder; and
- post a notice on the land.
How do you establish squatting?
Paying Council rates is critical but is not likely to be enough. If you base a claim of ownership on adverse possession, you will be need incontrovertible assertions of a right of possession of property and evidence of a documentary nature of your acts of possession. You need to set and implement what will be a long-term strategy. You need to be sure you are claiming possession of the correct property. Don’t carry out a lot of work only to find that the land you are claiming is not the land you think it is but some other land. In some ways you need to be going through some of the initial inspections and precautions of someone buying a block of land. You may need to establish the correct boundary alignment by survey. Be careful an owner is not likely to claim damages for your trespass. Remember you are starting out in the wrong and will be in the wrong against an earlier owner until the time expires. One of the best ways to establish your occupation of the land as owner is to fence it off. Signs asserting ownership may support a claim of possession of land. A sign that says “No Entry Allowed, by order of Your Name (owner)” is better than just “Keep Out” without recording the person making the assertion.
Keep an independent record of your use of the land. Make-up a diary and begin with all of the acts you have done to exercise possession of the block with for instance photos of the fencing, the details of the survey, and the photo of the signage . A picture paints a thousand words and a video even more. Consider preparing a statutory declaration to record all that you have done . Documentary evidence will be important if you want to sell your interest before the squatting period is up or if you are not available when the application is ultimately made.
How do you avoid a claim for adverse possession?
Keeping your rates paid is the first step to avoiding a squatter’s claim. If you allow occupation by permission, you need to be able to prove the basis of possession is the permission you have given and that the possession is not adverse. The best proof is an acknowledgement in writing from the person in possession that they are occupying by permission. Many disputes in this area arise from misunderstandings that could have been resolved by the parties maintaining business-like written records and agreements. At the end of this paper is a sample agreement that illustrates how use of a property can be recorded.
Are squatters subject to the subdivision rules?
The Recorder of Titles may require an applicant for a squatters title to produce a certificate from the relevant Council that the block is not in breach of the subdivision rules, or if it is, that the Council consents to the application.
How do I claim part of a title or a changed boundary?
The options to resolve a discrepancy between occupancy and title boundaries include:
- boundary rectification of title errors ;
- Local government subdivision, by agreement of the parties; or
- Moving the occupation to comply with the boundaries in the plan of title to the land.
Can squatter’s rights arise from some partial use of a property?
Adverse possession must not only be without the owner’s permission, but must also indicate to the true owner that his rights are being infringed. A secret or trivial use would not be a sufficient ground to claim rights of adverse possession. Slightly different rules and a longer period apply where the land is used in limited ways. If the land were used in conjunction with other land for some partial use, such as a right of way or right of drainage for a period in excess of 15 years, rights to continue that partial use may arise in favour of what would otherwise be a trespass. This is known as the Law of Prescription. A person who has used or enjoyed rights over a 15 year period (or 30 years in the case where an owner has a disability) and may acquire an easement by possession if they can show that:
- the easement has been enjoyed as of right;
- the easement has not been enjoyed by force or secretly;
- no written or oral agreements as to use have been made;
- there has been no common ownership between the benefited and burdened land;
- the owner knew, or ought to have known, of the enjoyment of the easement;
- the right of easement is of a continuous nature rather than temporary; and
- the applicant owns the land benefitted by the easement.
An easement cannot be acquired in a case where there is no land capable of benefiting from the easement. At least one other person must produce evidence in support of the easement being claimed. An application is to be supported by a plan of survey, unless the Recorder directs otherwise. Before lodging an application with the Recorder, a person must give written notice of the claim to the owner of the servient land. If the owner does not object, the Recorder must consider the application.
If the owner lodges an objection then the Recorder may not consider the application unless he is satisfied that the applicant would suffer “serious hardship” if the application is not granted. The easement claimed must be of the nature of an easement that is supported by the Common Law or Act of Parliament. The easement must be of the same character, extent and degree of use throughout the relevant period of acquisition but extra right can be separately acquired if the conditions are fulfilled. No claim may be made for a “profit a prendre”, a right to take material from land. An owner may record on his own title that a person exercising easement rights is doing so by permission of that owner to stop time adverse possession time running against the owner.
If I don’t use a right to an easement, can I lose it?
Expired, redundant or abandoned easements or other overriding interests can sometimes be removed.
Are squatter’s rights fair?
More often than not, squatter’s rights operate to tidy up mistakes and overlooked land where the original owner is long dead and gone. Usually there is no dispute. Where there are competing claims the operation of squatter’s rights can be difficult. If there is a dispute, often both the squatter and the registered owner are at fault. Although it may be unfair for the original owner to lose his rights, the new occupier may have acted in reliance on his long-standing use of the land.
It is unfair for the careless registered owner to take the benefit of whatever that use has been. Usually the laws of adverse possession are used where land has literally been abandoned. Often blocks are subject to some difficulty are left untended by the owner. Without the laws of adverse possession blocks such as this would be left orphaned and unused. Usually the laws of adverse possession operate to tidy up title holdings to bring them into accord with longstanding use.
Ownership of land carries with it, according to the theory of the laws of adverse possession, an obligation to use, maintain and defend land. If the land is neglected for long periods, the law says the original owner loses his right to keep it.
Can I get title to land occupied without deeds or without squatting?
If you can show you should be the owner “in equity and good conscience”, whether by unregistered purchase or otherwise, it may be possible to get title even though your occupation relies on something other than squatter’s rights.
Not a complete statement of law
This booklet is not a complete statement of the law. It does not deal comprehensively with your particular situation. This booklet is to provide general information to supplement our specific advice to you. Do not act in reliance on this booklet without our specific advice. We are responsible only if you give us specific instructions and for the specific advice we give. This booklet was originally prepared in 1995 and has been updated as at the 30th August 2012. It does not reflect changes to the law after that date. You need to take specific advice on the possibility or effect of any such changes.
Sample Agistment Agreement
THIS AGREEMENT for lease is made the day of 2012 BETWEEN (called in this agreement “the Landlord”) of the first part AND (called in this agreement “the Tenant”) of the second part THE PARTIES AGREE:
I. The Landlord agrees to let and the Tenant agrees to take the property at ..: (called in this agreement “the Property”)
II. The Tenant to hold the Property:
- A. from the date of this agreement;
- B. until determined by 14 written day’s notice of one party to the other; and C. rent free.
III. TENANT OBLIGATIONS:
A. The Tenant must maintain the pasture and fences in a good and husband like fashion.
B. The Tenant will not cut down or remove any growing timber on the Property without first obtaining the consent of the Landlord;
C. The Tenant will not commit or permit spoil or waste any of the Property;
D. The Tenant will use all proper means for keeping down and exterminating on the Property all rabbits and other vermin and noxious animals and all insects, thistles, weeds and other noxious plants and will comply with all laws and regulations governing such matters;
E. The Tenant will in cultivation and farming employ good, clean and husband like practices in accordance with the current standards of the district and shall keep and leave the Property in a clean and good hearted condition;
F. The Tenant must keep all waste properly stored and regularly remove any garbage.
G. The Tenant must not carry on or allow on the Property any trade or business other than that of grazing sheep and livestock without the prior written consent of the Landlord.
H. The Tenant must not do or permit anything on the Property which may be or become a nuisance annoyance or damage to the Landlord or the occupiers of other property in the neighbourhood.
I. The Tenant must comply with all the requirements of all Statutes, Regulations and By-laws in relation to the Tenants’ use of the Property provided that the Tenant shall not be required by this clause to carry out any works of a structural nature.
J. The Tenant indemnifies the Landlord from all liability and expenses arising from the Tenants use of the Property.
IV. LANDLORD OBLIGATIONS:
A. While the Tenant observe his covenants under the lease the Tenant shall peaceably hold and enjoy the Property during the term created by this lease without any lawful interruption or disturbance by the Landlord or any person rightfully claiming to act on behalf of the Landlord.
B. The Landlord must pay all land tax payable in respect of the Property.
C. The Landlord must pay all Council rates and charges payable in respect of the Property.
SIGNED by the Landlord in the presence of: SIGNED by the Tenant in the presence of: