What can you do if someone interferes with your property?

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If someone interferes with your personal and/or real property, you may be able to bring an action against them for the tort of trespass.

If a person interferes with your personal property, you can bring an action for trespass to goods/chattels against them. On the other hand, if a person interferes with your real property, you can bring an action for trespass to land against them.

The tort of trespass is actionable per se. This means that the claimant does not need to establish that they have suffered any loss or damage. In circumstances where no loss or damage has been suffered, any award of damages will be limited to nominal damages.

Trespass to Goods

In order to establish the tort of trespass to goods, the claimant must prove that the following (Perret v Williams [2003] NSWSC 381):

1. There was a positive, voluntary act on the part of the defendant;
2. The defendant’s act directly, either intentionally or negligently, interfered with the claimant’s possession of a good; and
3. The defendant’s act lacked any lawful justification.

The following actions by the defendant have been held to have constituted trespass:

• Touching goods without permission (Everitt v Martin [1953] NZLR 298);
• Moving goods around without permission (Kirk v Gregory (1876) 1 Ex D 55); and
• Removing the goods from the claimant’s possession (White v Withers LLP & Ors (CA) [2009] EWCA Civ 1122).

Trespass to Property/Land

In order to establish the tort of trespass to land, the claimant must prove that the following (Plenty v Dillon (1991) 171 CLR 635):

1. The defendant entered the land belonging to the claimant;
2. The defendant’s act directly, either intentionally or negligently, interfered with the claimant’s right of exclusive possession; and
3. The defendant’s act lacked any lawful justification.

Simply entering onto land belonging to another may constitute trespass in certain circumstances.

For example, in TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, the Environmental Protection Authority (EPA) wanted to determine whether the respondent had committed an environmental offence, so it planned to conduct a search on Anning’s (the respondent) property.

The EPA invited a reporter and cameraman from “A Current Affair” on Channel Nine to accompany the officers. The reporter and cameraman (the appellant) entered the respondent’s property with cameras rolling and confronted the respondent.

At first instances, the trial judge found that the appellant’s conduct constituted trespass to land and made an award of $10,000 plus interest in the respondent’s favour (this was an award of aggravated damages). The appellants then appealed the decision to the NSW Supreme Court, claiming that the trial judge had erred in determining that the appellant had committed trespass.

On appeal, the NSW Supreme Court held that the trial judge had not erred in finding that the appellant had committed trespass. In coming to its decision, the Court was guided by the fact that the respondent had given the appellant no implied or express licence to enter his land.

Key Takeaways

If someone interferes with your personal or real property without your permission, you can bring an action against them for trespass. The threshold for establishing trespass is relatively low, as the tort is actionable per se.

If you have not suffered any loss or damage as a result of the trespass, any award of damages will be limited to nominal damages, which is the smallest sum of damages awardable by the Court. Nevertheless, if you can demonstrate that the defendant’s conduct was particularly reprehensible, you may also be able to claim aggravated damages, which is a higher award of damages.