Torts Affecting Immovable Property
This Article discusses those torts that are affecting the immovable possession or property of a person.
Torts are civil wrongs . If a person violates the right of another person or omits his own duty generally towards persons ,it will came under the working area of torts. The crucial thread is that the duty should be primarily fixed by law instead of any other agreements between parties like in contract. Tortious liability is therefore a purely isolated branch of liability that arises only from the breach of duty. It not only covers tortious liability for personal injuries but also those torts against one’s own possessions. Possessions is generally known as Property. It is the valuable, tangible or intangible assets that a person possess. There are two kinds of property ie. Movable property and Immovable property. Movable properties are those tangible ones or properties except immovable property.It includes goods or chattels .Specified torts relating to Movable Property includes Trespass to goods , Detinue and Conversion(Trover).Then coming to the immovable property which is the main essence of this article includes all those Intangible possessions that a person normally have or it includes all the permanent attachments to the earth except growing crops or standing timber(as per Transfer of Property Act,1882). Torts affecting the immovable property fully concerned about the trespass to land. Lets have a look at what exactly the tort ‘ trespass to land’ means ,the ways of trespass ,remedies ,defences and all other aspects of it.
Trespass to land
- Trespass means unlawful entry in to someone’s personal holdings or possessions or even towards the person. Tort of trespass is actionable per se which means no need of proof for the damages. This clearly shows that the tort of trespass is seriously treated by the courts so that there are no burden of proof.Trespass to land May be minute entry or wide.The law consider only the presence or mere entry to other person’s land with out permission. The extend of land trespassed by the trespasser is not a matter for tortious liability.There should be an entry that is the deciding element of trespass. If the possession right of the land holder is interfered by the trespasser then then there is right of action. When it comes to possession ,there is a difference between right to possession and right of possession.
- Right to possession – The owner of the land who has absolute rights on the property
- Right of possession – The person who are possessing the property lawfully even though not being the real owner
If A gives his land for lease to B.Then A has ‘the right to possession’ and in turn B has ‘right of possession’.
Trespass should be taken in to account if it is done against right of possession
Trespass is actionable per se still plaintiff needs to establish that
- The plaintiff has possession at the time of trespass
- There was a direct interference to the enjoyment of possession
Kinds of trespass
- By entry without permission
- Staying on the land unlawfully
- Placing any object or other things on the land without due authority
- By Animals or others
Licence in terms of trespass means the authority or permission to enter in to others property . Licence vest an legality to the interference of others premises. Two types of licences:-
- Mere revocable licence
- License with grant (irrevocable)
In the case of Wood V Leadbitter, The plaintiff purchased a ticket to watch a horse race and later asked to leave the spot.But due to the refusal of the plaintiff leads to the forcible ejectment by the defendants who were the occupiers of the land while the race was going on.The plaintiff filed a suit for assault. The court held that the license was revoked by the defendants .Then the plaintiff is a trespasser .An the ejection was not a wrong therefore.
In Hurst v picture Theatres Ltd, The plaintiff purchased a ticket to watch a movie and enter in to the theatre and take his seat. Later he was forcibly thrown out of the theatre by the theatre authorities. Here the court held that the Licence with grant is not revocable and that’s why the plaintiff is eligible for damages.
If a person enters in to the land of other lawfully or with permission initially later misused it for trespassing subsequently .Then the act of trespass will be determined from the very beginning even though the initial entry was with permission. The whole act or entry became tort of trespass. The plaintiff can claim remedy for damages
- If the authority or permission or consent given by the owner.He or she cannot claim trespass ab-initio. The only possible remedy is the right of action for the damages suffered
- If the permission given by any contract.Then the doctrine of trespass ab-initio won’t apply.
- This principle will not be a proper fit for the tort by omissions.
Six carpenter’s case
In this case six carpets went in to a tavern and drank wine and paid for it .After it they again made an order for wine and bread. Order was properly serviced. But then they refused to pay .The plaintiff claim for trespass ab-initio. The court held that mere non -feasance in the non-payment of money is not enough for the charge of trespass ab-initio.
- Right to re-entry- The plaintiff has the right to re-enter to his land which is unlawfully trespassed by the trespasser.Use of reasonable force the eviction of the trespasser is legal and this is considered as a normal remedy for trespass
- Action for ejectment – The plaintiff can legally move further by filing a suit for trespass
- Mesne profits – The plaintiff can claim mesne profits alone or along with claim for recovery of land.
- Consent –The defendant can claim that the trespass was with the consent or permission of the land owner or possessor.
- Prescription-If the defendant is possession someone’s land continously for 20 years ,he can claim difference of prescription later as a good defence
- Necessity- If the trespass was in a time of emergency condition
- Avoiding nuisance – If the trespass is to stop the nuisance
- Self -defence
Difference between trespass and trespass ab-initio
- Trespass is the entry of others premises without permission while in trespass ab-initio the entry is lawful later with the trespass becomes wholly trespass from the beginning.
- Trespass is absolutely unlawful .But trespass ab-initio is primarily legal .
- In trespass there is no consent or permission from the part of the possessor but in later there is a consent or licence from the owner.
Trespass to land is a tort against the right of possession of a person. Possessions are the valuable assets of a person. So it equally seeks importance like other personal injuries. By leaving a space for the torts affecting the immovable property , the court could appreciatively handle cases of trespass to land ,trespass with licence and trespass ab-initio to a level.
Author :AISWARYA M
Government law college ,Ernakulam