Definition

The Concept of Possession

Elements
How Trespass can be Committed

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

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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.

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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.

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WHO HAS THE EXCLUSIVE

POSSESSION?

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

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ELEMENTS INTENTION/MENTAL STATE

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

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 INTERFERENCE: HOW TRESPASS
INTENTION/MENTAL STATE CAN BE COMMITTED
 In League Against Cruel Sports Ltd v Scott,  Wrongful entry
the Plaintiffs owned 23 unfenced areas of
land. Staghounds used to enter the land in  Hickman v Maisey [1900] 1 QB 752
pursuit of deer.  Tan Wee Choon v Ong Peck Seng [1986] 1 MLJ
 The Plaintiffs sued the joint Masters of the 96
Hounds for damages and sought an injunction
against further trespasses.  Continuing trespass
 Park J issued an injunction in respect of one  Nadchatiram Realities (1960) Ltd v Raman &
area restraining the defendants themselves, Ors [1965] 2 MLJ 263
their servants or agents, or mounted followers,  Placing objects on land
from causing or permitting hounds to enter or
cross the property. Damages for six  Holmes v Wilson [1839] 10 A&E 50
trespasses were awarded.  Tay Tuan Kiat v Pritam Singh [1987] 1 MLJ 276

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WRONGFUL ENTRY WRONGFUL ENTRY

 In Hickman v Maisey, the defendant, a  Applying that reasoning, he accepted,
racing tout, had used a public highway that a man resting at the side of the
crossing the plaintiff's property for the road, or taking a sketch from the
purpose of observing racehorses being highway, would not be a trespasser.
trained on the plaintiff's land.  The defendant's activities, however, fell
 Smith L.J. expressly followed the outside "an ordinary and reasonable
approach of Lord Esher M.R. in Harrison user of the highway" and so amounted
v Duke of Rutland [1893] 1 QB 142. to a trespass.

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WRONGFUL ENTRY CONTINUING TRESPASS

 In Tan Wee Choon v Ong Peck Seng, it  Nadchatiram Realities (1960) Ltd v
was held that once a person wrongfully
enters onto land in possession of another Raman & Ors, the Court held that a
even though no damage has been done, tenant at will becomes a trespasser if he
that constitute trespass to land. In this case remains on the premises after a notice
the defendants were held liable in trespass.
demanding possession has been served
 In Chanan Singh v Thiyagaletchumi [1965]
2 MLJ 158 , the Court held that slightest on him.
crossing of the boundary is sufficient to
constitute an unjustifiable intrusion upon
the land in possession of another.

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 INTERFERENCE: HOW TRESPASS
PLACING OBJECTS ON LAND CAN BE COMMITTED
 In Tay Tuan Kiat v Pritam Singh, a wall  Trespass ab initio
which encroached onto the plaintiff’s  The Six Carpenters [1957] 2 QB 334
land, was held to constitute trespass for  Elias v Pasmore [1934] 2 QB 164
as long as the wall was not demolished.  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

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TRESPASS AB INITIO TRESPASS AB INITIO

 In The Six Carpenters’ case, six carpenters  In Elias v Pasmore [1934] 2 KB 164 it was
entered a tavern by law, not on the held that a constable who was arresting a
invitation of the host. They drank and paid. man named Hannington for sedition was
After that they ate and drank again, but entitled to seize documents which were in
they refused to pay. his possession which would form material
 The Court held that it was not trespass ab evidence against the plaintiff in that action
initio because it was an act of non- on a charge of inciting Hannington to
feasance, a mere omission to pay. commit the crime of sedition.
 The rule that was developed in this case: if  Horridge J said, that their seizure, although
a person is there by law and commit a tort, improper, would be excused because the
he is a trespasser from the point he has documents were capable of being used
entered the land. and were used as evidence in the trial.

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ABOVE AND BENEATH THE MAXIM: CUIUS EST SOLUM EIUS EST
SURFACE USQUE AD COELUM ET AD INFERNOS
 The Court in Kelsen v Imperial Tobacco  This means that whoever owns the land,
Co held that an advertising sign erected owns it all the way to the heaven and to
by the defendants on their own property hell.
which projected into their air space  Lord Bernstein of Leigh v Skyviews and
above the plaintiff’s shop created a General Ltd [1977] 2 All ER 902
trespass.  Karuppanan s/o Chellapan v
 Even if the plaintiff suffered no damage Balakrishnen s/o Subban [1994] 3 AMR
at all, he was entitled to an injunction. 2279

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 THE END

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