IX. Trespass to land
One common neighbourhood dispute in villages in the New Territories involves boundaries.
Land boundaries in the New Territories are sometimes unclear. Your neighbour may encroach on your land without knowing that the land belongs to you. Sometimes your neighbour may intentionally place his boundary fence on your land to “steal” your land. In this situation, you may sue your neighbour for trespass to land.
A. What is trespass to land?
Trespass to land is committed when the defendant, without permission, intentionally enters, remains on, or directly causes any physical matter to come into contact with land in the actual possession of the plaintiff.
Examples of trespass to land are:
- setting foot on the land;
- riding or driving over the land;
- taking possession of the land;
- expelling the person in possession of the land;
- pulling down or destroying anything permanently fixed to the land;
- parking cars on other people’s land; and
- erecting or allowing to continue on his own land anything which invades the airspace of a neighbour, such as overhanging trees.
If the defendant intends to enter the land on which he trespassed, it is no defence that he mistakenly thought that it was his own land or that he had authority to be there .
B. Who can sue?
Trespass to land is actionable by the person who is in possession of the land.
If land is in the possession of a tenant, the tenant is the proper plaintiff to sue for trespass to land. The landlord has no right to sue for trespass.
As with nuisance, family members of the owner of the land have no right to sue for trespass to land unless they have sufficient control over the land. For example, a deserted wife who is in exclusive occupation of the home has the right to bring action against trespassers, even if she is not the owner or tenant of her home.
If the trespass has caused the plaintiff actual damage, such as physical injury to the land causing a diminution in the value of the land, he is entitled to receive an amount sufficient to compensate him for his loss. If the defendant has made use of the plaintiff's land, the plaintiff is entitled to receive by way of damages a sum that should reasonably be paid for that use.
The court may grant an injunction to prevent the continuance or threatened repetition of a trespass or threatened acts of trespass.
3. Recovery of possession
In the case of a trespasser who has possession of the plaintiff's land, the plaintiff can institute an action in the court for ejectment, which is recovery of possession of the land.