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Law of Torts II – Trespass to land (Lecture 5)

Law of Torts II – Trespass to land (Lecture...

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Law of Torts II – Trespass to land (Lecture 5) Land includes: Surfaces (soil) and anything growing on surfaces (trees, grass), and buildings and structures affixed to it. Ground underneath the surface (& minerals) and mines sunk underneath the surface. (Sub-soil to any depth) o Di Napoli v New Beach Apartments Pty Ltd [2004] NSWSC 52. ‘At least for subterranear rights, a person has substantial control over land underneath his or her soil for a considerable depth’ – Young CJ The airspace above the ground (‘ordinary use’ test – to a reasonable height). o Right to airspace – Can only continue extend as far as necessary for occupier’s use and enjoyment of the land ( Bernstien v Skyviews ). o Test: Whether incursion in airspace impacts on occupiers ‘ordinary use’ of the land. ( LJP Investments v Howard Chia Investments). ‘Ordinary use’, as in the proper use and enjoyment of the land. It is said that a plane flying overhead is not trespass, but if something is overhanging above the land that interferes with the ordinary use of the land, such as in LJP, there is a trespass. Trespass to land also protects Easements and rights in the nature of profits a prendre (eg: fishery rights, shooting rights, rabbiting rights, right to fell timbre) o These are all specific property rights to do things on land. Title to sue “Every unauthorised entry upon private property is trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right” The P must show that at the time of the interference by the D, the P was entitled to exclusive possession of the land (eg: Owner/occupier, a person who holds a lease). Sue for interference for either. If having one of these, therefore exclusive possession over land: o Airspace o Buildings o Surface soil
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o Profit-a-prendre o Subsoil This is about interference with particular rights over the land. Person with a lease over property (eg: you rent a house), they can sue landlord if the landlord interferes with exclusive possession of the property, o The Landlord (who therefore does not have exclusive possession or a right to exclusive possession) cannot sue someone who comes onto the land and cuts down trees. As soon as a lease is given away, therefore no case in trespass for landlord.
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