Understanding trespassing and your rights
One of the simplest ways to test if trespass has occurred is if there has been a deliberate intention to enter another person’s property. This does not have to be the registered land owner, just the lawful occupier of the land or premises.
In this blog we explain a little more about what trespassing is – and what it isn’t – and the penalties for trespassing.
What is trespassing?
A person must not enter into, or remain in someone’s house or yard, or business premises without their permission, unless they have a lawful reason to be there. A few reasons why someone might have a genuine reason to enter someone else’s property might include:
- A plumber completing work in the yard;
- A paramedic or police officer performing their duties; or
- A worker entering a yard to read electricity or water readings.
What trespassing is not
For this type of offence, police will always use considered discretion, particularly when deciding if something was intentional, malicious or in fact, accidental. Someone might be alarmed when they spot someone in their backyard, therefore will call the police to make a formal complaint, however accidents do happen, and people do get lost. For example, if you have accidently entered an incorrect property while you were looking for or expecting to be at another property, it is unlikely you would be charged with a trespassing offence as this was a mistake.
Charges for trespassing
There are a few things that must occur if someone is to be charged for trespassing, including 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 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.
What can you do if someone is trespassing?
As an occupier of property, it is quite important you understand your rights against trespassers to ensure you do not also end up in hot water. For example, you should always take care when removing a trespasser from your land as they can sue you for assault if you use too much force.
You should always first ask the person to leave before you consider any more drastic action. You could also consider recording all interactions you have with the trespasser in full to use as evidence at a later date. If they refuse to leave, your next step is to call the police who will assist to remove the trespasser.
Penalties for trespassing
It is up to the police and court as to whether a trespasser would be charged with a criminal offence. If the trespasser has caused loss or damage to you or your property, there are civil remedies available to assist, however if you cannot identify any loss or damage, then it may not be worthwhile avenue to go down.
If an individual is found or pleads guilty, the court can issue an injunction to ensure that the trespasser does not trespass again or that the trespasser pays you compensation.