There is a basic principle at law: a person with exclusive possession of land has the right to decide who may enter their land. Of course, this is subject to exceptions, such as police. If someone enters without permission, there are a range of remedies.
What is ‘exclusive possession’?
The concept of exclusive possession is fundamental to property rights. The person or company who exercises exclusive possession has the right to decide who may enter the property and under what circumstances. The following people/parties generally may exercise exclusive possession:
- Home owners who occupy the home
- Businesses who own and occupy commercial property, such as a mechanic or GP practice
- Residential or commercial tenants
The key aspect is that a person with exclusive possession may determine who enters.
What if someone enters without my permission?
If you have exclusive possession, you have the right to ask them to leave. This is called the ‘right of ejectment’. A person may use reasonable force to enforce this right, though be careful! The force can only be reasonable in the circumstances. Care needs to be taken that unreasonable force is avoided, as that may lead to criminal charges or a civil claim.
The right may be enforced by police. For example, in the ACT, section 151 of the Crimes Act makes it illegal to forcibly enter premises of another in a way likely to cause a breach of the peace. Therefore, if someone has entered the premises or remains after the consent was revoked, they may be in breach of this law.
Can you make a civil claim against the person who unlawfully entered?
Yes. There is a civil claim called ‘trespass to land’. In a trespass claim, you must show that the person entered onto the land without consent or exceeding the limits of the consent. They need to have done this deliberately or negligently. The remedy available is damages.
Claims can also be made to restore possession if the person has entered and not left. This may be appropriate if a person has built something on your land. An injunction can also be sought to restrain future trespasses.
If you would like further advice, our Litigation and Dispute Resolution and Property teams have the expertise to assist you.
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