TRESPASS TO

LAND
What is defined as LAND
 What is land?
 a. surface
 b. earth below
 c. all vegetation (whether needs labour /
natural)
 d. all things attached to the earth
 e. land that is covered by water
 s. 5 NLC 1965
 All of the above
 Trespass to land
 Trespass to land is the intentional wrongful
entry and unreasonable interference with
another’s ownership or possession of the
land.
 Trespass can only be committed against
someone who has possession of the land.
 Actionable per se (Cheah Kim Tong v.
Taro Kaur)
 Possession
 Only a person who has possession of the
land may make a claim in trespass to land.
 Trespass to land is founded upon
interference with the Plaintiff’s possession
of his property. It should be noted that it is
not merely ownership which gives rise to a
cause of action in trespass, but it is the
possession.
 Possession eg:
 Land lord  Tenant
(ownership) (Exclusive
possession)

However,
Possession will revert
back to LL once
tenancy expires
 3 kinds of possession
 1. Possession in law
 2. Possession in fact
 3. Immediate right to possession
1. Possession in law (de jure)

This is when a person has the intention to

exclude the world at large from interfering
with the thing in question and he does so
on his own account and own name
Ex: House buyer (land owner), Tenant,

# What about a lodger?

(a mere presence does not give rise to
possession)
2. Possession in fact (de facto)

 This exists when the plaintiff has the right

to use the land as well as the ability to
exclude others (possessory rights)

 Actual possession

 Need not be recognised by law

 ctd
 A plaintiff who has possession in fact can
bring a claim against anyone who
trespasses except;
 a. another person who has possession in
fact
 b. person who has possession in law
 c. a person who has immediate right of
possession
 (Senik v. Hassan (1963) 29 MLJ 368) – Df
had no title
 Possession in fact ctd’
 Senik v Hasan
 Df Planted rubber on state land w/o proper title
or permission
 Df let Pf into possession due to some
consideration
 Pf stayed and tapped rubber for 18 months
 Df asks Pf to leave and dispossess Pf before
notice period is over.
 Pf sues for trespass
 ctd
 Held :
 Actual possession is good against all except one
who can show better right of possession in
themselves
 Not necessary that possession be lawful
 Df could not show that he had superior title or
better right of possession (like possession in
law)
 Df liable for trespass
 Immediate right to possession
(IRP)
 If a person who has a right to immediate possession
enters the land in the exercise of that right, he is
deemed by the law to have been in possession ever
since the commencement of his right.
 He may accordingly sue for any trespass committed
since that time.
 As a result of the doctrine of the right of immediate
possession, P can sue for trespass committed while
he was actually out of possession.
 Explanation of IRP
 A’s father died in 1982 – leaving all property to
A
 A finds out in 1986
 A claims possession from B who was occupying
the land
 B refuses to move
 A goes to court – decides in A’s favour in 1991
 The law – A has immediate right to possession
from the moment his right to it accrued in 1982
 Also called the ‘Doctrine of relation back’
 Yip Shou Shan v Marubeni
 D had physically damaged the P’s nearby land.
 D argued that the trespass in early July 1991
occurred before the P became registered
owner and thereby P cannot sue.
 Ctd’

 Trespass by Df (early July 1991)

 18th July 1991- Pf took physical
possession of the land
 Df argued that Pf became registered
owners ONLY on 29th July 1991 and
therefore cannot sue.
 Their (Pf’s) rights had accrued on 29 June
1991 - Pf became registered owners (coz
settled purchase price)
 Early July 1991 (trespass)
 18 July – physical poss
 29 July – supposed
registered owners

 29 June 1991 (Pf settled payment)

 Other cases on possession
 Sidek v Gov of Perak
 S 48 NLC – No title to state land shall be
acquired by unlawful occupation or
occupation under any licence for any
period whatsoever

 Julaikha Bibi v Mydin

 TOL licence
 Sidek bin Haji Mohd. & 462 others v The Govt.
of the State of Perak, [1982] 1 MLJ 313

- P opened up a large part of a jungle area in North

Perak.
-P, later were given notice by the State Govt. to stop
work and vacate the area.
-P brought an action for a declaration that they were
entitled in law and equity to be in possession of the land
opened up and occupied by them.

Fed Court Held: (per Raja Azlan Shah, Abdoolcader,

Salleh Abbas) P cannot succeed because they are
squatters. Squatters have no right either in law or in
equity. Illegal occupation of State land is an offence
under s. 425 of the National Land Code (NLC).
 Julaikha Bibi v Mydin (1961)
 P, a TOL holder sued the D for wrongful
occupation.
 At the time P received the TOL, the D was
still in posession of the house with consent
from the previous TOL holder.
 Held: D was a trespasser from the
moment the previous TOL expired and a
fresh TOL was issued to P.
 Elements of trespass
 1. Intentional act (intentional or voluntary,
not necessary to prove that Df knew he
was trespassing)
# (duress, pushed in and kept on land –
not intentional)

 2. Interference with possession

 2. Interference
 Interference is the term used to establish
trespass.
 Interference with the possession of land
may occur;
 1. by wrongful entry
 -personal entry by D, or by some other
person or animal into land or building
possessed by P.
2. remaining beyond the permission given
-even a person who has lawfully entered
commits a trespass if he remains there after
his right of entry (or leave or license) has
expired.

3. by throwing or placing things on the land -

- Rigby v. Chief Constable of SY
- Marubeni’s case
Yip Shou Shan v Sin Heap Lee-Marubeni Sdn.,
Bhd [2002] 5 MLJ 113
-P & D were owners of two adjoining lands. D
had carried on works on a golf course and a
huge residential and commercial complex on
his land.
-Debris from D’s construction works dumped
on P’s land forming a steep slope.
Held: D was liable in trespass to land.

 Interference on the highway

 Hickman v. Maisey
 Pf’s land that was crossed over by a highway /
road
 Df was a racing tout
 Walked up and down the 15 yard stretch
 Taking notes of the trials of racehorses on the
pf’s land (spying)
 Held : Trespass – unreasonable use of highway,
he was not using the road for its purpose
 Trespass to subsoil and
airspace

 Recall the definition of land in s. 5 NLC

 Trespass to air space
In Woolerton & Wilson Ltd. v Richard Costain Ltd,
[1970] 1 WLR 411 ,a tower crane on construction
sites swung over adjoining land.
Held: this amounted to TTL. P was entitled to an
injunction.
Kelsen v Imperial Tobacco Co., [1957] 2 QB 334
- an advertising signboard erected by D on their own
shop projected only 8 inches into the airspace above
P shop.
Held: it created a trespass and a mandatory
injunction was issued to remove the signboard.
 Karupanan v Balakrishnan

Hotel
Bought
by (Df)
 (Pf) Resp’s land
Appl

Sewerage system, manholes and septic tanks

 Ctd’
 Fed Ct. – serious case of trespass
 Resp entitled to mandatory injunction to
remove source of trespass
 Immaterial if the source of trespass
existed before new owner came or
whether or not he knew of it
 S 44 (1) (a) – exclusive right to subsoil and
airspace above the surface of the land
 (how high?) – as may be reasonably
necessary for the enjoyment of his land
 Bernstein v Skyviews and General Ltd, [1978]
QB 479
HELD : the flight of an aircraft several hundred feet
above a house is not a trespass at common law.
-But if an aircraft, or anything from it, falls upon the
land or comes into contact with a structure on it,
that might be a trespass, no matter the height from
which it fell.
 If interference is caused by an aircraft, P may also
invoke s. 19 of the Civil Aviation Act 1969 and claim
damages.
 Ctd’
 S. 19 Civil Aviation Act (1969)
 Any material damage caused by aircraft in flight,
shall be recoverable from the owner of the
aircraft (strict liability)

 Can bring action;

 Under s. 19 CAA (no need for proof of
negligence or intention)
 Trespass
 Negligence
 Trespass ab initio
 Trespass – wrongful entry
 But if a person enters lawfully (by authority
of the law) and subsequently abuses his
authority for the very purpose of his entry
(by committing a positive act of abuse), he
can be sued for trespass ab initio (his
conduct of trespass is counted from the
very beginning)
 Cases
 Cinnamond v British Airport Authorities *
 Six Carpenters’ case *
 Azizah v Dato’ Bandar *
 Elias v Pasmore
 Chic Fashions (1968) 2 QB 299 *

 This doctrine is more to protect the public

against abuse of authority (police, local authority
etc…)
 Cinnamond v British Airport
Authorities

 Six mini cabs drivers

 Given right to enter airport
 But not to hang about and tout
 But they touted –
 i)reason for entry abused and were sued
for trespass ab-initio
 ii) it was a positive act of abuse
Six Carpenters’ case *
 6 carpenters entered into a restaurant,
drank and ate
 And refused to pay
 Pf sued for trespass ab initio
 They were not trespassers as there was
merely an omission to pay (negative act)
 Azizah v Dato’ Bandar *

 Local auth contractor went to do repair

works on a river to prevent floods pursuant
to s 53 (1) SD & B Act
 In the process, they encroached the Pf’s
land,
 Pf sues for trespass and alternatively for
trespass ab initio, claiming the auth
abused their authority as they;
i) Failed to manage works
ii) Damaged property – some turf and 2
coconut trees destroyed
 Held:
 Df act lawful
 There was no abuse on the land – no
trespass / trespass ab initio
 And – they had already been
compensated for the damage
 Elias v Pasmore

 Police lawfully entered a premise to arrest

a man and seized some documents as
well although some were not lawfully taken
 Held : they were not trespassers ab initio
 They had only trespassed the documents
unlawfully taken
 Their entry was therefore lawful from the
beginning to the end.
 Trespass ab initio : critisized
 Chic Fashions (West Wales) (1968) 2 QB
299
 Lord Denning critisized the doctrine in
relation to the duties of a police officer.
 Once an entry is lawful, it would be
improper to hold the entry unlawful
subsequently unless it falls under the
circumstances of Cinnamond.
 Where a constable enters a house by virtue of a
search warrant, he can seize not only goods as
specified in the warrant but also other goods
which he believes could be regarded as material
evidence….. Even though it should turn out that
this was his mistaken belief
 His entry does not become unlawful simply
because he unjustifiably seizes other goods.
 However, if he unjustifiably took the goods, he
may be liable for trespass to goods but not
trespass to land (see Elias v Pasmore)
 DEFENCES
 1. Licence
 Permission of any kind (authorisation)
 Licence is permission given to another to
enter the land
 Eg: guests, lodgers at hotels, students in
hostel
 Tenancies, leases, easements and other
contractual licences.
 Ctd’
 As opposed to contractual licenses, there
is also gratuitous licence (without valuable
consideration).
 This licence can be revoked at-will by the
licensor. After revocation, the licensee
becomes a trespasser.
 Ladang Tai Tak v Suppiah
 Facts:
 Df built temple on Pfs land and refused to
vacate
 It was a gratuitous licence and terminable
at will (at request of owner)

 Therefore for Land matters – depends on

the kind of licence in question.
 2. Justification by law
 Statute – authorise or impose duty on local
authority or organisations – might give rise to
issues in trespass to land.
 S. 53 SD&BA 1974
 S. 16 – 18 CPC – to conduct search in the place
a person is to be arrested (READ)
 S. 283-284 NLC 1965 – easement – the right
given by one proprietor to another for beneficial
enjoyment of his land
 3. Necessity

 Cope v Sharpe Nesting pheasants

on C’s land

Pf’s land
-fire
 Mistake ?
 Mistake is no defence –
MBF Property v Madihill Dev.
 MBF Property v Madihill
 Mistake is no defence

Pf Pf

Defendant’s
 REMEDIES
 What remedies can a plaintiff have if
someone has trespassed his land?

What will you do if;

 Tenant refuses to move
 Developer encroaches your land
 Farmer allows cattle to graze on
neighbouring land
 1. Damages

 2. Injunction
Order by the court compelling the
defendant to do or refrain from doing a
certain act
3. Re-entry onto the Land (self help)
 A person entitled to possession can enter
or re-enter the premises and may use
necessary force.
 S. 7 Specific Relief Act – provides for re-
entry BUT must enter the land using no
more force than necessary to do so.
 Do not take law into own hands
 4. Action for recovery of land (Ejectment)
 A person dispossessed of land can recover it by
an action for recovery of land.
 Provided by s. 7 and 8 SRA 1950
 S. 7 provides for self-help but if it is felt that
more force is needed, one should resort to the
law.
 Case: Poh Swee Siang v Trustees of Leong San
Tong Khoo Kongsi (Kongsi case)
 Facts:
 Pf tenant since 1950 - 6 acres of land, vegetable
farm, gradually upgraded… house erected etc…
 1976 given notice to move
 1982 another notice
 Oct 82’ – Df brought 20/30 men and bulldozer –
demolished everything, threatened to forcibly
evict Pf, 1 female worker killed.
 Pf sued for trespass to land, to obtain damages
and injunction.
 Decision
 In favour of the Df.
 Df has the right to repossess the land BUT
he should have done this by due process
of the law as provided under s. 7 SRA and
not by taking the law into his own hands.
 Court found that Df acted in a very high
handed manner and awarded;
 1. RM150,000 exemplary damages
 2. Special Damages
RM 42,000 water sprinkler system
pig sty
chicken coop
attap hut
RM 135,000 – loss of vegetable
produce
 S. 341 NLC - Adverse possession of land
for any length of time shall not constitute a
bar to bringing an action for recovery
(limitation period)
 5. Mesne profit
Means : profits that were made by the
defendant during unlawful possession of
the Plaintiff’s land

Therefore, if Df has kept the Pf out of

possession of his land, the court may
award mesne profit.
THE END