Law of Tort Tutorial Week 8 Question 2 Topic: Trespass to land Presented by Alan and Kevin

Agenda Facts Issues Rules Applications Conclusions

Facts Background Location: Li On Building One owner: Owner (O) Two tenants: Tasty (T) & Ho (H) Tasty rented ground and first floor Ho rented the second floor

Facts Conflicts 1. T drills holes in wall outside H to put big nails to support a neon signboard. The wall was cracked due to the weight of signboard. And the neon sign reflect glare into H apartment.

Facts Conflicts 2. T contracted with XY Construction Co for the renovation. XY erects bamboo scaffolding covering the front and the side balcony of H.

Issues 1.Is T drilling holes in wall outside H to put big nails and consequently cracked the wall a trespass to land? 2.Is the glare reflected to the apartment of H is a trespass to land?

Issues 3.Is the bamboo scaffolding a trespass to land? 4.Can the owner sue T for trespass for land?

Rules A tenant has possession to land Every unjustifiable interference with the possession of another’s land is a trespass.

Rules A tenant in common or joint tenant of land cannot sue his co-tenant in trespass, UNLESS the defendant’s act amounts to the total exclusion or ouster of the plaintiff or destructive waste of the common property.

Rules Directness An act setting in motion an unbroken series of consequences with ultimately interferes with P’s possession of land Case Lau Tao Shing (No 2) v Lau King Lim [1959] HKLR 354

Rules Intention Deliberate Reckless Natural consequence Case Braithwaite v South Durham Steel Co [1958] 1WLR986

Application (1) Is T drilling holes in wall outside H to put big nails and consequently cracked the wall a trespass to land? A continuing trespass is committed where the defendant having unlawfully entered the plaintiff’s land continues to remain thereon.

Application (2)Is the glare reflected to the apartment of H is a trespass to land? Where there is no act of direct intrusion on another person's property, liability in trespass does not arise, although liability may arise in nuisance Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218

Application (3) Is the bamboo scaffolding a trespass to land? Trespass to airspace may be committed by structural projections, by firing projectiles, by means of objects such as kites, aircraft, spacecraft flying over the land or dropping things on the land. An infringement of such airspace is trespass to land Lau Tao Shing (No 2) v Lau King Lim [1959] HKLR 354 Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334

Application (4) Can the owner sue T for trespass for land? The owner has no right to sue in trespass if any other person was lawfully in possession of the land at the time of the trespass, since a mere right of property without possession is not sufficient to support the action Wallis v Hands [1893] 2 Ch 75

Conclusion An unjustifiable interference with the possession of land. 1. Yes 2. No 3. Yes 4. No

Remedies for H - Injunction Most appropriate remedy may lie by way of an injunction. This may be necessary to prevent a threatened or recurrent or continuing trespass. John Trenberth Ltd v National Westminster Bank Ltd (1979) 39 P & CR 104

Remedies for H - Damages If the trespass has caused the plaintiff actual damage, he is entitled to receive such an amount as will compensate him for his loss Armstrong v Sheppard and Short Ltd [1959] 2 QB 384

Defence for T - Claim of right A defendant may plead and prove that he had a right to the possession of the land at the time of the alleged trespass, or that he acted under the authority of some person having such a right Holmes v Newlands (1839) 11 Ad & E1 44

Defence for T - Licence If the person in possession of land gives to another person licence to enter on the land, then, so long as the licence continues and the entry is justified by the licence, the person to whom the licence was given cannot be treated as a trespasser Williams v Morris (1841) 8 M & W 488