If you deliberately or carelessly do something that directly interferes with someone else’s land, you are trespassing. It is not usually a crime, but is a civil wrong, and you can be sued for doing it even if you did not cause any damage by trespassing.
The most common example of trespassing is when you go onto someone’s land without their permission. It is also trespassing to dump rubbish on someone else’s land. Land includes everything above and below the ground, so you might be trespassing if you burrow under someone else’s land.
To bring an action against someone for trespass, you have to show that you have a right to exclusive possession (rather than ownership) of the land on which the trespass occurred.
Signs that have the words ‘Trespassers will be prosecuted’ written on them are not strictly accurate. Technically you can only be prosecuted if you commit a crime.
The Summary Offences Act 1966 (Vic) (‘SO Act’) (s 9) deals with trespassing. A person can be guilty of trespassing if they:
- trespass in a ‘public place’ and neglect or refuse to leave after being warned;
- enter a ‘private place’ or ‘scheduled public place’ without express authority unless for a legitimate purpose; or
- neglect or refuse to leave a ‘private place’ or a ‘scheduled public place’ after being given a warning and do not have a lawful excuse.
The terms ‘public place’ and ‘scheduled public place’ are defined in section 3 of the SO Act.
What you can do about trespassing
You are allowed to eject a person who comes onto your land without your permission. You must not use any more force than is reasonably necessary to do this. Obviously, you should first ask the person to leave before you consider any more drastic action. If you use too much force, you may be guilty of assault and could be committing a crime or be sued for damages for any injuries the ‘trespasser’ suffers as a result of your actions.
What a court can do about trespassing
If you can convince a court that someone has trespassed on your property, it can order the trespasser:
- to stop trespassing now, and to never trespass again (this is called an injunction); and/or
- to pay you compensation.
If a trespasser claims to be entitled to stay on your land, you can ask the court to decide if this claim is valid and, if it is not, to give you a ‘writ’ for possession.
When you can trespass
If someone sues you for trespass you may have a defence if any of the following has occurred:
- you were on the land with the permission of the person who is suing you;
- you have been authorised by some law to go onto the land (see ‘Officials on your land’, below);
- you have gone onto the land to stop a nuisance (see ‘Nuisance’, above); or
- you have gone onto the land to get back goods that belong to you. This only applies if the goods have been put there by or with the help of the person on the land or someone who has stolen the goods.
Officials on your land
The law allows some people to come onto your land without your permission, in certain circumstances for specific purposes.
The officials allowed onto your land for specific purposes include:
- police officers;
- meter readers;
- post office officials;
- health officers;
- council officers;
- licensed surveyors; and
- members of the fire brigade.
Police officers are allowed onto your land if they have a warrant, which they should show you when seeking entry to your land.
If they do not have a warrant, they may only enter your land if you invite them, or if particular circumstances arise, such as making an arrest, stopping a breach of the peace or ensuring that the SO Act is being complied with (see Chapter 3.5: Arrest, search, interrogation and your rights).
Meter readers and post office, health and council officers
Gas, water and electricity meter readers, post office officials, health officers, and council officers are also allowed to come onto your property for specific purposes related to their jobs.
These people should show you proof of their identity.
Licensed surveyors (and people acting under their direction and supervision) are also permitted onto your land for the purpose of carrying out a survey. Even then, there are rules about notifying property owners; also entry is only permitted at certain times of day.
Members of the fire brigade
Members of the fire brigade can come onto your property and do whatever they think is necessary to stop a fire, including deliberately damaging your property. No one else is allowed to cause any damage to your property.