Trespassers Will Be Prosecuted! Or will they?

By Jodie Mason

We have all walked or driven past properties that display a sign stating that TRESPASSERS WILL BE PROSECUTED. Is this is a fear tactic or a legal warning? Let’s explore.

1. What is trespass?
Any deliberate or careless act that directly interferes with someone else’s land is considered a trespass. It is a private wrong, and a trespasser can be sued, regardless of whether there was any actual damage caused.
The most common example of trespassing is entering another’s land without their permission. Some other examples where a Court has found that a person has trespassed are: –

• Firing a gun into the soil of someone’s property;
• Placing a ladder against someone’s building;
• Driving a nail into the wall of someone’s building;
• Encouraging a dog to run on someone’s land;
• Removing the doors and windows from someone’s house; and
• Throwing a person (!) onto someone’s land.

2. The law
To bring a private action against a trespasser, you must have an exclusive right of possession (rather than ownership) of the land on which the trespass has occurred. Therefore in the case of a rental property, it is the tenant that has the right to sue, not the owner.

3. Prosecution
The word prosecution can be misleading, as a person can only be prosecuted if they commit a crime.
The crime of trespass in Queensland is governed by the Summary Offences Act 2009 (Qld). A person can be guilty of trespass if they unlawfully enter a residential or commercial property. It is unlikely however that a person would be prosecuted by police for a trespass that has not caused any significant damage, due to
the time and cost involved for the State.
Failing prosecution by the police, a person can commence a ‘private prosecution’. These types of actions are rare due to the high costs involved in running a prosecution, the fact that legal fees are not recoverable and if a fine is imposed, the money is paid to the State.

4. Liability as a land occupier
There is a story circulating the rumour mill about a burglar that cleaned out a 95 year old widower’s house, taking everything she owned. Whilst fleeing the house, the robber tripped on granny’s cat, breaking his leg. Some weeks later, granny receives court papers stating that she is being sued for the robber’s medical expenses. The robber wins and granny has to sell her home to pay for the robber’s rehabilitation. This story causes outrage amongst those who hear it. This story poses the question; do you have the responsibility to ensure the safety of a trespasser on your land?

Displaying a sign that trespassers may be prosecuted informs people that they are not welcome on the property, thereby revoking what is known as an implied licence to enter the land.
An implied licence gives a person a right to enter someone else’s land for a specific purpose. For example, leaving a front gate unlocked can give a person the right to enter the gate and go to the front door of the house. Just as easily, locking a front gate can revoke this right. By displaying a sign, any person entering your land could be considered a trespasser.
So what if a trespasser falls over your collection of garden gnomes? The Courts have stated that an occupier owes a duty to all entrants of land, both visitors and trespassers. The Court’s approach to an occupier’s liability to a trespasser is largely unresolved, however the general position is that a duty owed to a trespasser may be less than that of a visitor, especially if you are not aware that the trespasser is on your land.

5. Time to Revise
As alluded to, the term ‘prosecuted’ is not accurate and as such, I would like to suggest a revision to the old classic. Perhaps something as simple as ‘NO ENTRY, PRIVATE PROPERTY’, or if you are particularly concerned about accuracy ‘IF YOU ENTER THIS LAND YOU ARE A TRESPASSER! I RESERVE MY RIGHTS TO PURSUE YOU FOR DAMAGES AND CLAIM MY LEGAL FEES SHOULD I BE SUCCESSFUL. FURTHER I HAVE THE RIGHT TO PRIVATELY PROSECUTE, AND THE POLICE MAY EVEN BE INTERESTED IF YOU BREAK SOMETHING. PLEASE DON’T TRIP ON THE WAY OUT……..’