‘Would you mind getting off my property, please? Thank you’

Trespass to land involves aperson unjustifiably interfering with land which is in theimmediate and exclusive possession of another. Usually, it consistsof a person entering upon land belonging to a third party withoutconsent. There are various options open to the occupier orlandowner faced with trespassers. Seeking a court order to removetrespassers whilst effective, can be costly with the costs incurredrarely being recovered due to the trespassers usually being"persons unknown".

One option is for alandlord/occupier to exercise the common law right of a landowner/occupier to remove the trespasser themselves. This "selfhelp" remedy consists of a person using "reasonable force" toremove trespassers.

There is little in the way ofjudicial guidance as to what amounts to "reasonable force". Eachcase is judged on its facts but in general terms, it is the amountof force that a reasonable person in the same situation wouldbelieve is necessary to make the trespasser leave. This iscompletely subjective and land owners/occupiers run the risk ofbeing found to have crossed the line beyond what isreasonable.

No attempt by an occupier orlandowner should be made to forcibly remove a trespasser until thetrespasser has been asked to leave the property first. Once thetrespasser has been asked to leave and they do not leave within areasonable time, "reasonable force" can be used to make thetrespasser leave. However, if more force than what is considered"reasonable" is used then the person employing the force may findcriminal protection and a civil action brought by thetrespasser.

This remedy is fraught withrisk. Whilst other options may be more costly or time consuming,reliance on the common law right to remove a trespasser should beseen as the exception rather than the rule.

One point to remember is thata land owner/occupier cannot exercise this common law remedy if theland subject to trespass is residential property. Property ownersshall also remember, however, that it is now a criminal offence fora trespasser to remain in occupation if a residential propertywhere the owner/legitimate occupier opposes thatoccupation.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.