Trespass to your Properties

[Motolani Olayiwola]

What is trespass to property in civil actions?

This is the unauthorized, intentional or negligent interference or handling of a property belonging to another, most often with the malicious intention to damage it.

Trespass to property can occur in a number of ways. This includes by taking the property away from the victim, e.g., as in seizure of the property by the defendant without lawful justification, or merely by taking it away from where you put it and taking it to another place even without the intention of dispossessing you of it. For instance, if I park my car in a premises, and Mr. John comes and removes my car to another place without any lawful justification, it amounts to trespass. It does not even matter that my car was not damaged in the course of the removal.

Trespass can occur through contact with the property by a human body or by another property which causes damage. For instance, if I intentionally hit your chair or table with my car without lawful cause and damage it in the process, I have trespassed against your property with my own property. If I sit on your chair and intentionally cause it to damage, I have trespassed against your property. But note that your property does not have to have been damaged before you can make your claim. The mere fact that I touched your property with my body or my property makes me liable for trespass to your property.

Trespass to property can also occur merely by touching a property which could be affected by such a touch. If, for example, Mr. A touches an artwork belonging to Mr. B and such artwork is damaged by that touch, it becomes trespass. If I intentionally touch a wall which you have just painted and thereby caused damage to it, I have trespassed against your property.

Please note as I stated before that trespass to property would occur even if there were no damage to such property. Just like in false imprisonment and some other civil wrongs, the victim does not have to prove any physical damage to his property before he can claim for trespass. Of course, the fact that the property was damaged would only increase the amount of damages the victim is entitled to. So, in the first example above, I can sue for damages for removing my car where I parked it even if there was no physical damage to my car. In the same vein, I can sue you for touching my artwork without lawful justification, even if there was no damage to it.

In order to sustain the claim for trespass to property, the victim must, however, be able to show that the trespass was the direct act of the defendant. For instance, if Mr. A cuts trees on the farm or land belonging to Mr. B, there is trespass. If John beats a dog or cat belonging to Jane without lawful cause, it becomes trespass to Jane’s property. It does not matter that Mr. A cut the trees believing that it was his own farm, or that John beat Jane’s pet under the mistaken belief that it was his own.

The victim must also be able to show that he was in possession or is entitled to the possession of the property at the time of the trespass. It is irrelevant here that he is not the owner of that property at that material time. For instance, if Alice borrows a necklace from Sule, and Jacob damages the necklace, Alice can sue Jacob for the trespass notwithstanding that the necklace is not hers. If I take out my friend’s car which was damaged by Mr. A, I am entitled to file a claim for trespass against Mr. A because I am in possession of that car at that material time, though, I am not the owner. It is the same situation if I leased/hired an apartment/shop/warehouse from my landlord and John damages such apartment. I am entitled to sue John for trespass to the property, though I am not the owner.

The intent of the defendant to willfully and unlawfully cause the trespass is of importance here. Where the victim cannot establish that the defendant intentionally trespassed against his property, it becomes a case of negligence which is another form of civil wrong. We shall talk about negligence later in Chapter 4 of this book. For example, if Mr. A cuts a tree in his premises, and the tree falls across into Mr. B’s premises and damages part of his house, Mr. A may not be liable in trespass because he did not intentionally and maliciously cause the damage. But he may be liable for negligence.
Other instances of trespass to property include housebreaking, burglary, arson, etc.

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