Advertiser Login Facebook Twitter The Trespass Tort and its Remedies Posted on January 16, 2014 by Michael Martin Leaño Trespass is originally one of the forms of action under the English common law, which went as far back as the thirteenth century. It eventually evolved to what it is today--a tort that gives the wronged party the right to file a lawsuit against the trespasser. Here is a basic overview of the trespass tort and its legal remedies. What is a tort? A tort is a civil and private wrongdoing or infringement of a right that leads to legal liability. Take note that a tort is different from a crime. A crime is a public wrongdoing that results in punishments typically designated in a specific law. While crimes can be torts, the cause of action (i.e. facts that allow a person to initiate legal action against another) may not necessarily be a crime since the harm may have been because of negligence, which is different from criminal negligence. What is trespass? Trespass isnt simply the unauthorised entry into someones property without permission--that definition limits the term to land and chattel. Trespass, specifically, is a negligent or intentional act made by individual that causes injury to another person or his/her property without lawful justification, no matter how slight. The use of the term injury here means a violation of ones right and not necessarily actual physical harm or loss. Types of trespass Trespass can be divided into two broad types: Trespass to the person There are generally three trespasses to the person: Battery: This refers to a negligent or intentional act that causes physical interference with plaintiffs body without lawful justification. Assault: This type of trespass is an intentional or negligent act where a person touches, strikes, moves, or applies any kind of force to another without the recipients consent. All state and territory criminal laws have more detailed definitions that may also be considered an assault. False imprisonment: This form of trespass is the illegal restraint or detention of an individual against his or her will by another without legal justification or consent. Trespass to property Trespass to land/property is the tort that is commonly associated to the term trespass. As stated earlier, trespassing is defined as the intentional and unauthorised invasion or interference of property or chattel. Trespass, whether to the person or property, requires only proof of injury and not necessarily actual damage. In common law, each unauthorised entry on ones property is already considered trespassing, although liability for unintentional trespass differs, depending on the jurisdiction. Trespass to land isnt limited to the surface as land has subsoil, airspace, or anything that comes with the land (e.g. houses, other infrastructure). Take note, however, that trespass to subsoil and airspace does come with its restrictions. There was originally this property law principle (in Latin) which goes: cuius est solum eius est usque ad coelum et ad inferos. It means for whoever owns the soil, it is theirs up to Heaven and down to Hell, which practically gives the landowner absolute dominion over the airspace and subsurface. In modern times, courts have limited these rights. For instance, if any landowner had absolute authority over airspace, then each airline would be sued for merely flying over millions of owned plots of land. Elements of trespass Generally speaking, trespass possesses four elements. These are the following: The fault must be an intentional or negligent act. The harm must be of direct interference with the person or property. The injury is inflicted on the plaintiff or his or her property. There is no lawful justification. Remedies If trespass (not criminal trespass) is established, a court may order an injunction or payment of damages to resolve the conflict. Damages As weve discussed previously, payment of damages is a court remedy that is awarded to compensate for a loss or injury. While damages vary depending on the claim and jurisdiction, there are mainly two types: compensatory and punitive damages. As the term suggests, compensatory damages are paid to compensate the plaintiff for the injury (in this case, trespass). There are two types of compensatory damages: general and special damages. Oddly enough, general damages refer to the non- monetary aspects like emotional distress, while special damages are the actual economic losses like property damage or loss of earnings. Punitive damages work differently as they are intended to punish the defendant and to keep him or her from repeating the act. The plaintiff receives part or the entirety of the punitive damages. In Australia, punitive damages are possible for tort cases. Injunction An injunction is a court order that restrains a person from performing an action threatening or invading the legal right of another. If the person fails to follow the injunction, he or she will face criminal or civil penalty (i.e. a fine), and may have to pay damages or other sanctions like arrest or even a prison sentence. An injunction can be an effective remedy for trespass, especially when comes to trespassing. Consider, for instance, that monetary damages would be a useless benefit to someone who just wants to stop the repeated trespassing on his home or property. Related Articles:
Posted on: Fri, 31 Oct 2014 20:48:31 +0000
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