Definition

The Concept of Possession

Elements
How Trespass can be Committed

1 2

DEFINITION
 Trespass to land is an unjustifiable
interference with the possession of land.
 The tort is committed against possession,
and not ownership of land.
 In addition, trespass to land also means
any unlawful entry of a person or thing onto
land or buildings in the possession of
another.
 Sections 5 and 44 of the National Land
Code
DEFINITION
When a person intentionally enters into the
plaintiff’s land, he is liable for trespass even
though he does not know that he is
trespassing, for example, having lost his way or
he genuinely but erroneously believed that the
land was his.
Where a person enters into a plaintiff’s land
involuntarily, for example, he is thrown or
pushed into the plaintiff’s land, he is not liable
for trespass simply because there is no act on
his part.

3 4

DEFINITION EXAMPLES
Examples of trespass are;
 In short, the tort of trespass may be defined •Leaving parcels on the wrong person’s doorstep
as; •Leaning a ladder against their wall
 Entering upon land in the possession of the •Throwing stones onto their land
plaintiff or
 Remaining upon such land or
 Placing or projecting any object upon it in each
case without lawful justification.

5 6

1
 THE CONCEPT OF POSSESSION
 Possession means generally the
occupation or the physical control of
land.
 The degree of physical control
necessary to constitute possession may
vary with the type of land.
 Mere physical presence on the land or
de facto control of it does not amount to
possession sufficient to bring an action
of trespass.

7 8

WHO HAS THE EXCLUSIVE

POSSESSION?

 Guest in a hotel?
 Squatter?
 Temporary occupation
licensee?
 Tenant and sub-
tenant?
 Landlord?

9 10

ELEMENTS INTENTION/MENTAL STATE

 There are three important elements:
 Intention/ mental state of the defendant
○ Basely v Clarkson [1682] 3 Lev 37
○ League Against Cruel Sports Ltd v Scott
[1985] 2 All ER 489
 Interference with the possession of the land
 The injury must be direct and immediate
○ Esso Petroleum Co v Southport Corp [1976]
QB 801
 In Basely v Clarkson, while moving his
grass, the owner of land accidentally
mowed some grass on his neighbour’s
land. The neighbour claimed that he had
committed trespass, and was awarded
judgment.

11 12

2

INTENTION/MENTAL STATE
 In League Against Cruel Sports Ltd v Scott,
the Plaintiffs owned 23 unfenced areas of
land. Staghounds used to enter the land in
pursuit of deer.
 The Plaintiffs sued the joint Masters of the
Hounds for damages and sought an injunction
against further trespasses.
 Park J issued an injunction in respect of one
area restraining the defendants themselves,
their servants or agents, or mounted followers,
from causing or permitting hounds to enter or
cross the property. Damages for six
trespasses were awarded.
13
WRONGFUL ENTRY
 In Hickman v Maisey, the defendant, a
racing tout, had used a public highway
crossing the plaintiff's property for the
purpose of observing racehorses being
trained on the plaintiff's land.
 Smith L.J. expressly followed the
approach of Lord Esher M.R. in Harrison
v Duke of Rutland [1893] 1 QB 142.
15
WRONGFUL ENTRY
 In Tan Wee Choon v Ong Peck Seng, it
was held that once a person wrongfully
enters onto land in possession of another
even though no damage has been done,
that constitute trespass to land. In this case
the defendants were held liable in trespass.
 In Chanan Singh v Thiyagaletchumi [1965]
2 MLJ 158 , the Court held that slightest
crossing of the boundary is sufficient to
constitute an unjustifiable intrusion upon
the land in possession of another.
17
INTERFERENCE: HOW TRESPASS
CAN BE COMMITTED
 Wrongful entry
 Hickman v Maisey [1900] 1 QB 752
 Tan Wee Choon v Ong Peck Seng [1986] 1 MLJ
96
 Continuing trespass
 Nadchatiram Realities (1960) Ltd v Raman &
Ors [1965] 2 MLJ 263
 Placing objects on land
 Holmes v Wilson [1839] 10 A&E 50
 Tay Tuan Kiat v Pritam Singh [1987] 1 MLJ 276
14
WRONGFUL ENTRY
 Applying that reasoning, he accepted,
that a man resting at the side of the
road, or taking a sketch from the
highway, would not be a trespasser.
 The defendant's activities, however, fell
outside "an ordinary and reasonable
user of the highway" and so amounted
to a trespass.
16
CONTINUING TRESPASS
 Nadchatiram Realities (1960) Ltd v
Raman & Ors, the Court held that a
tenant at will becomes a trespasser if he
remains on the premises after a notice
demanding possession has been served
on him.
18
3

PLACING OBJECTS ON LAND
 In Tay Tuan Kiat v Pritam Singh, a wall
which encroached onto the plaintiff’s
land, was held to constitute trespass for
as long as the wall was not demolished.
19
TRESPASS AB INITIO
 In The Six Carpenters’ case, six carpenters
entered a tavern by law, not on the
invitation of the host. They drank and paid.
After that they ate and drank again, but
they refused to pay.
 The Court held that it was not trespass ab
initio because it was an act of non-
feasance, a mere omission to pay.
 The rule that was developed in this case: if
a person is there by law and commit a tort,
he is a trespasser from the point he has
entered the land.
21
ABOVE AND BENEATH THE
SURFACE
 The Court in Kelsen v Imperial Tobacco
Co held that an advertising sign erected
by the defendants on their own property
which projected into their air space
above the plaintiff’s shop created a
trespass.
 Even if the plaintiff suffered no damage
at all, he was entitled to an injunction.
23
INTERFERENCE: HOW TRESPASS
CAN BE COMMITTED
 Trespass ab initio
 The Six Carpenters [1957] 2 QB 334
 Elias v Pasmore [1934] 2 QB 164
 Above and beneath the surface
 Kelsen v Imperial Tobacco Co [1957] 2 QB
334
 Wandsworth Board of Works v United
Telephone Co [1884] 13 QBD 904
20
TRESPASS AB INITIO
 In Elias v Pasmore [1934] 2 KB 164 it was
held that a constable who was arresting a
man named Hannington for sedition was
entitled to seize documents which were in
his possession which would form material
evidence against the plaintiff in that action
on a charge of inciting Hannington to
commit the crime of sedition.
 Horridge J said, that their seizure, although
improper, would be excused because the
documents were capable of being used
and were used as evidence in the trial.
22
MAXIM: CUIUS EST SOLUM EIUS EST
USQUE AD COELUM ET AD INFERNOS
 This means that whoever owns the land,
owns it all the way to the heaven and to
hell.
 Lord Bernstein of Leigh v Skyviews and
General Ltd [1977] 2 All ER 902
 Karuppanan s/o Chellapan v
Balakrishnen s/o Subban [1994] 3 AMR
2279
24
4
 THE END

25