This article relates to trespass to land only. Trespass in Queensland is considered a civil dispute or tort, which means you can sue and be sued for trespass.
For a plaintiff to be successful, the court must be satisfied on the balance of probabilities that the trespass has occurred. The plaintiff must have lawful possession of the land at the time of the interference, and that possession must be exclusive.
For example, a land owner who has leased their property, and so, is out of possession, may not bring an action in trespass. There must have been a direct interference with the land by the defendant without lawful authorisation.
Any form of unauthorised entry, however slight, is trespass, whether express or implied. There must have been a fault by the defendant.
In essence, the interference must have been a voluntary act of the defendant without the consent or authorisation of the plaintiff in possession of the land. If you have been accused of trespass to land in a civil context, there are certain defences that may be available to you. These include but are not limited to:. There may be a defence to trespass if the inference occurred in circumstances where the interference was necessary, but consent could not reasonably be obtained.
Consent can either be express or implied by conduct; however, it must be genuine and voluntary. There is an implied licence that certain members of the public such as police officers or fire fighters can enter land for a legitimate purpose with authority awarded to them under laws and regulations, which thereby operates as a defence against trespass.
Examples of this include entering land to question a witness to a crime, or in an emergency. Inevitable accident is a defence that apply in circumstances where the defendant can show that their conduct was involuntary, and accordingly, the defendant is without fault.
Where a plaintiff believes that a defendant is trespassing on the land, the plaintiff is allowed to use reasonable force to retain or re-enter the land in order to keep out or expel the defendant. A cause of action in trespass may fail if the defendant can show that a third party has better rights to the property than the plaintiff. A defendant may be able to establish a defence to trespass is a minor who can establish their inability to understand the true nature of the act committed. Mistake is generally not a defence to intentional torts, including trespass.
However, mistake may be a defence to a cause of action in trespass if the defendant can prove they acted with a mistaken belief, and the mistake was reasonable. An example of when mistake could be raised as a defence to trespass is where a person cuts down a tree and the tree falls on land the person believes they own, when that land is actually owned by a neighbour.
If you believe a trespass has or is occurring, or you fear for your safety, you should initially call the police. The trespass may be a criminal offence. Whilst you may be able to use reasonable force to remove the trespasser, it is often advisable to have the police escort the person off the land to avoid disputes.
You should ensure that the letter is written by a lawyer to avoid accidently extorting or unlawfully threatening the trespasser. Refine results. Search by. Reclaiming goods : Last Revised: Thu Nov 20th The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice.
Serious criminal trespass occurs if a person enters or remains in a place other than a place that is open to the public as a trespasser with the intention of committing an offence involving theft, or against a person such as assault , or against property punishable by imprisonment for 3 years or more such as arson [s Criminal Law Consolidation Act SA ].
Aggravating factors of serious criminal trespass in a place of residence. An offence is aggravated if committed in any of the circumstances that generally give rise to aggravation [s 5AA]; or if another person is lawfully present and the offender knows of the other's presence or is reckless about whether anyone is in the place [s 2 ]. In the story Bidder's Edge illegally trespassed onto eBay's website trying to link to potential customers.
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