3 ELEMENTS
1) Intention 2) Voluntary Act 3) Foreseeable Interference
1) Intention 🤔
The defendant must have INTENDED TO DO the act — not necessarily intended to trespass. Even a genuine mistake is no defence.
A man who cuts grass and unknowingly crosses the boundary commits trespass — he intended to mow, even if not to cross.
❗Rule: You are liable whether you know you are trespassing or don’t know you have no right to be there.
2) Voluntary Act 🖐️
The entry must be willful. If someone is PHYSICALLY PUSHED onto land by another person, they are not liable — the act was involuntary.
Being physically forced or carried onto land = not trespass. (Smith v Stone [1647])
3) Foreseeable Interference 👀
The intrusion must be a foreseeable consequence. The MAGNITUDE of the encroachment is irrelevant — any interference will do.
A 20-inch concrete foundation intrusion = full trespass. (Willcox v Kettel [1937])
Elements tested in Court 🧑⚖️
Basely v Clarkson (1682)
Defendant cut grass and drifted over boundary.
Held: Trespass — he INTENDED to mow, even if not to cross the line.
Intention = the act, not the wrong.
Terra Damansara v Nandex [2006]
Ground anchors drilled beneath plaintiff’s land.
Held: All 3 elements present (Intentional act, voluntary entry, foreseeable intrusion). Injunction granted.
For further information, please contact us at Miranda & Samuel:
- Dato’ George Miranda (george@mirandasamuel.com)
- Joy Sam Jia Qian (joy@mirandasamuel.com)
- Alisyah Maisarah (alisyah@mirandasamuel.com)
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– By George Miranda, Joy Sam Jia Qian, Alisyah Maisarah –
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.
