Torts Affecting Immovable Property 

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Torts Affecting Immovable Property 

This Article discusses those torts that are affecting  the immovable possession or property of a person. 

Introduction 

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 

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. 

Trespass ab-initio 

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 

Exceptions 

  • 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. 

Remedies 

  • 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. 

Defences 

  • 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

  1. 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. 
  2. Trespass is absolutely unlawful .But trespass ab-initio  is primarily legal . 
  3. 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. 

Conclusion 

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

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