Mastering property boundaries - what constitutes trespass
Trespass refers to the unauthorised entry onto another person’s property. In New South Wales (NSW), trespassing is a criminal offence attracting both fines and prison sentences, as it violates an individual’s moral and legal rights, including the right to control access to their property. Offences relating to trespass are governed by the Inclosed Lands Protection Act 1901, while similar in nature Break and Enter offences are addressed by the Crimes Act 1900. Furthermore, trespass laws apply not only to property owners, but also to any “occupiers” as well, such as licensees or tenants. Ultimately, if a person enters your property without permission, you have the right to request that they leave. If they refuse, they are committing the offence of trespass, and you are therefore entitled to use “reasonable” force to remove them. However, excessive force could result in assault charges against you by the trespasser. To avoid unnecessary confrontation, the police may be called upon to remove and charge the trespasser.
What actually is trespass?
The Inclosed Lands Protection Act 1901 sets out the range of acts that may constitute trespass in NSW:
- Unlawful entry on enclosed land
Section 4 of the Act stipulates that crossing into premises enclosed by physical barriers delineating the property’s boundary, like walls or fences, constitutes trespass. While it is lawful to physically enter the property for a specific purpose, such as paying a visit or delivering a package, it becomes illegal if the person remains on the premises once asked to leave. Penalties range up to five penalty units and $550.00, or ten penalty points and $1,100.00 if the land is associated with a government school or a registered non-government school, a nursing home, a hospital, or a childcare service, including any structure of building erected on that land.
- Unlawful re-entry on enclosed land
It may be deemed a trespass offence if you violate a re-entry prohibition order given orally or verbally by an event organiser. This order must provide specify the venue, the person in charge of the event, the consequences of infringement, and reasons for the prohibition.
- Remaining on enclosed land
Section 4A imposes stricter penalties for refusing to depart from premises, especially if the offender behaves disrespectfully. For instance, a person may be entitled to be present for the purpose of attending an open house, but once asked to leave, their right dissolves. People with a specific purpose for entering your land, such as for door to door sales, have an implied right to traverse your property up to your door, however it similarly becomes trespass once they stay when asked to leave, or after you withdraw your consent in another way. Ultimately, this offence is punishable by 10 penalty points, or 20 if the premises are prescribed.
- Aggravated unlawful entry on enclosed lands
This involves someone disrupting ongoing business activities or risking safety and is punishable by a maximum of 50 penalty points, or 120 penalty points and/or 12 months’ imprisonment if the land is agricultural.
- Wilfully leaving the gates to another property open upon your exit.
This carries a maximum of 15 penalty points under section 5 of the act.
According to the act, trespass actions must be initiated within 2 months of the incident. To prove trespass, the property owner burdened must demonstrate lawful ownership or occupation of the land and provide evidence that the accused entered the premises without seeking permission, or intentionally rejected the landowner’s instructions to exit the premises.
Exemptions from trespass liability include having obtained free and preferably explicit consent, acting to prevent serious harm or protect life, possessing statutory authority, or having prescriptive rights due to long-term occupation or use of the property.
Legal defences
Common defences for trespass include that the defendant sought consent from the relevant authorities, and that the act of trespass was necessary, for instance in response to danger or immediate threat; if you rely on this defence, you must be able to convince the court that this was a reasonable action. Otherwise, you must validate your lawful excuse to enter into or remain on enclosed lands without consent from the occupier, owner, or any individual seemingly in charge of the premises. However, negligence laws impose a duty of care not to damage property or injure people, so individuals must properly exercise caution and foresight. Your failure to take responsible precautions in preventing foreseeable harm could cause you to be reasonably sued for your liability in negligence for injury and damage.
Dealing with nuisance
A nuisance describes an unintended yet repeated activity causing damage and interfering with one’s comfort with their property. Examples of nuisance include leaking water and damage from tree roots. Impeded views and sunlight are generally not labelled as nuisance unless they cause genuine damage to the property. If applicable, you can apply for an injunction or sue for damages, however laws in this area are complex, so it may be worth considering other options such as Alternative Dispute Resolution (ADR).
Easements
An easement refers to a right over a portion of somebody else’s land for a specific purpose. They may emerge from longstanding customary use of this land, or from formal agreements, and all formal rights of way or easements must be registered and noted on the Certificate of Title. Easements are enacted for various reasons, including to protect waterflow and airflow, to erect signage, to convey services, and to grant access to properties. Easements may be established to formalise and regulate the encroachment of buildings, and to grant the necessary rights for continued use and maintenance of sewerage and drainage pipes. Ultimately, easements allow the individual benefitting from it – the dominant tenement – to legally use the neighbouring portion of land – the servient tenement – for the designated purpose agreed upon.
To initiate the process of creating an easement, applications for a court order are predominantly made to the Supreme Court, and in limited cases, to the Land and Environment Court. Courts can create an easement if the owner of the burdened land can be sufficiently compensated for any resulting loss, that the applicant has made reasonable attempts to obtain the easement, and that the use of land is consistent with public interest.
Certain agreements can alter or eradicate the easement in place, including a deed of release, and court orders can extinguish easements if the land use has changed, or if it has not been used for a minimum of 20 years, rendering these easements obsolete. Under section 89 of the Conveyancing Act 1919, individuals can apply for an order declaring the nature, existence, and extent of an easement over particular land, or for an order enforcing an existing easement.
Peeping or Prying:
Under section 547C of the Crimes Act 1900, people in, on, or near a building without a sufficient excuse, with the intention of peeping or prying on another person, are committing an offence punishable by a three-month imprisonment, as well as fines of up to $220.
Neighbours
Under Section 20 of the Dividing Fences Act 1991, an adjoining owner undertaking fencing work may enter adjacent lands at any reasonable moment in time to undertake their work. For further security and legality, individuals can apply to the Local Court for one of two orders authorising entry onto neighbouring land, under the Access to Neighbouring Land Act 2000:
- Neighbouring Land Access Order
This order allows applicants to undertake work on their personal land. Individuals granted with this order may use it to commence inspections, determine the course of pipes, cables, and drains to repair, remove, or clear of blockages, demolish or construct, and tend to vegetation. In granting a Neighbouring Land Access Order, Local Courts must be content that the applicant has indeed attempted to reach an agreement with the individual whose consent is required, and that the applicant has given 21 days' notice of the application, unless the court has granted a waiver of this notice period.
- Utilities Land Access Order
This order allows applicants to undertake work on telephone, water, gas, drainage, electricity, or sewer services, and is only applicable to individuals entitled to the utility so that they can perform inspections, undertake construction, or make improvements or repairs.
Either of these orders can be applied for, and they may contain certain conditions outlining precautions that minimise damage, injury, and loss to the owner, including the loss of privacy, as well as conditions concerning reimbursement for expenses sustained by the owner. Failure to comply with any conditions can lead to fines of up to $550, as well as a distinct order for compensation for any injury or loss incurred from the access granted. Regardless, the act requires that the applicant restore the land to its original condition as much as reasonably practicable and pay compensation to the owner for any damage. Local Court decisions regarding orders may be appealed only on a question of law to the NSW Land and Environment Court, and appeals must be lodged within 30 days of the Court’s decision being made.
Damage
If personal injury or damage to your property occurred from the act of trespass, you could reasonably sue the accused. This further applies to objects that enter someone’s property without permission, such as a ball accidentally thrown over a dividing fence. In this instance, the object’s owner should immediately remove the ball, requesting permission to enter the land and retrieve the object. If this occurs frequently, landowners could apply to the Supreme Court for an injunction ordering the cessation of this repeated act of trespass.
Since involving courts can be costly, complex, and time-consuming, it may be worth exploring different options, such as Alternative Dispute Resolution (ADR).
Individuals may be ordered by the court to pay compensation for damages inflicted during the act of trespass.
Break, enter and steal
To be guilty of the break, enter, and steal offence, the accused must have physically broken the barrier or seal of a property to unlawfully enter the premises, where belongings were removed without the owner’s consent, and intending on permanently depriving the owner of this stolen property. Under the Crimes Act 1900, the law punishes acts involving breaking, entering, and committing or intending to commit a serious indictable offence, typically theft, or assaulting with intent to murder. The enter and commit offence carries with it a maximum imprisonment if 14 years under section 112 of the Crimes Act 1900, while section 113 confirms the maximum imprisonment for entering and intending to commit this serious indictable offence as 10 years.
What are my rights as a tenant?
While tenants are not the lawful owners of the property they are inhabiting, they are entitled to “reasonable peace, comfort, and privacy”, meaning that no-one, including the landlord, should interfere with this right. While landlords and agents involved should be allowed entry into the tenanted property if they possess a valid reason and provide notice, your consent as a tenant is generally required for people to enter your premises. However, the relevant people can enter the property without consent and notice for matters such as emergencies, to do urgent repairs, if they have serious concerns about health and safety, or if the landlord believes that the property may have been abandoned. Ultimately, landlords and agents should avoid interfering with your privacy by giving valid reasons for their visits, and seeking consent. If as a tenant, you do believe that your right to privacy is being violated, you can explain your frustrations in a letter of complaint, demanding that agents and landlords abide by the lease agreement in place, or you can apply to the Tribunal for orders.
What are my rights with police?
Police can only enter your property when it is reasonably necessary to investigate domestic violence offences, to exercise lawful powers of arrest, or to assist an injured person.
How to limit trespassing on your land?
You can limit and prevent trespassing on your NSW property by posting signs, securing gates, avoiding negligence, maintaining your property, hiring security, and installing fencing and security cameras, all to deter people from entering your property, and potentially obtain evidence of trespassing to ensure personal and communal safety.
To be lawfully convicted, the prosecution must prove beyond reasonable doubt that the land in question was enclosed, and that the accused entered or remained on this land without the consent of the owner. If you are convicted for the offence of trespass, a Nationally Coordinated Criminal History Check will record a Disclosable Court Outcome (DCO) in your file. For more information, or further clarification, it may be worth reading over the relevant NSW legislations listed below:
o Access to Neighbouring Land Act 2000
o Conveyancing Act 1919
o Crimes Act 1900
o Dividing Fences Act 1991
o In closed Lands Protection Act 1901
o Summary Offences Act 1988
If you require legal assistance with a trespass offence, or should you have any questions, please do not hesitate to contact us on (02) 9170 0899.
Written by Olivia Maietta