Law of Torts:

Trespass to Land
By: Haizam Mohd, Property Law

1. Definition

Trespass to land is the unreasonable interference into someone’s possession

of land. The owner or lease holder of the land has the right to take legal actions
against the trespasser.

2. Elements of Trespass to Land

To file a successful trespass to land suit, the plaintiff must prove two
elements of trespass to land; intention of the defendant and interference.

i. The intention of the defendant

The defendant must intend to do the act of alleged trespass or the act of
voluntarily entering someone’s land without consent.

Refer to case Basely v Clarkson (1682). The defendant accidentally

mowed the plaintiff’s grass while he was mowing his own compound. The
court held that, the defendant was liable to trespass to land as the act was
voluntarily done.

ii. The act of interference (wrongful entry, remain continuously on land or

placing objects)

Interference by wrongful entry means that even the slightest crossing of

the boundary is sufficient of trespass to land. Refer to previous case, Basely
v Clarkson. However, if there is no intention to enter the land, then there is no
trespass.

Refer to case Smith v Stone (1647). The defendant was carried by force
onto plaintiff’s land. The court held that, the trespasser was not Clarkson, but
the persons who carried the defendant upon the land.

Next is the interference by remaining continuously on land. If a structure

or object is placed on someone’s land, he is said to commit two trespassing.
The first is trespass of wrongful entry and second is the failure to remove it
causes a continuing trespass.
Refer to case Cheah Kim Tong v Taro Kau (1989). The defendant was
a TOL holder for Lot 777 and 779. Defendant built a temporary house but it
 encroached to Lot 781, his neighbour. The owner of the 781 negotiated with
the defendant for the removal of the part of the house that encroached his
land, however failed. The court held that, the defendant had committed two
trespassing, wrongful entry and continuous trespass therefore the court
ordered the defendant to demolish the structure that was trespassing.

Last interference is placing or projecting objects. He who possesses the

surface of the land also possesses the strata and stratum. Any entry on air or
below the land ,if without permission is actionable to trespass to land.

Refer to case Wilcox v Kettel. The court held that, the intrusion of
concrete beam by 20 inches was trespass. Thus Kettel was liable and must
demolish the structure that has entered the plaintiff’s land.

3. Defences

a) Statutory duty

A local authority or government officer may be authorised to carry out works

under a statute which may give rise to liability in trespass to land.

Refer to case Azizah bte Zainal Abidin & Ors v Dato’ Bandar Kuala
Lumpur. To avoid flood, the local authority had widened a river which ran along
and slightly inside the plaintiffs’ land. The court held that the work was lawful
under Street, Drainage and Building Act 1974 as they were carrying the work
under statutory duty.

b) Easement

An easement means any right granted by one proprietor to another, such

right being for the beneficial enjoyment of the other land. The criteria of easement
are:

 There must be a dominant and servient land

 The easement must accommodate the dominant land
 The owners of dominant and servient are different owners

c) Acquiescence

Acquiescence means agreement or consent. To raise this defence

successfully, the defendant must show that the plaintiff had consented him to
enter his property.

Tutorial
1. Briefly explain the types of interference in trespass to land
(6 marks)

2. Diana built a new fence, however the fence protruded two feet into Khabib’s land.
Khabib wants her to pull it down. Advise Khabib.
(9 marks)

References

 Nuraisyah Chua Abdullah, Questions and Answers on Malaysian Courts,

Statutes, Cases, Contract, Tort, and Criminal Law, 7th Edition, 2015.
 Norchaya Talib, Torts in Malaysia, 2nd Edition, 2003.
 Rogers, W.V.H., Winfield and Jolowicz on Tort, 16th Edition, 2002.
 Lee Mei Pheng, General Principles of Malaysian Law, 4th Edition, 2001.