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THE LAW OF TRESPASSING

by Munawirah Mohamad
Partner
Abdul Raman Saad & Associates (Melaka)
Malaysia
December 1st, 2010
Telekom Malaysia Berhad
Kuala Lumpur
Slide 2
WHAT IS TRESPASS?
An unlawful intrusion that
interferes with one's person
or property.
Slide 3
TYPES OF TRESPASS
Trespass exists in two (2) forms : an action for trespass on real
property and an action for injury to personal property
In an action for trespass on land, the plaintiff could recover
damages for the defendant's forcible interference with the
plaintiff's possession of his land. Even the slightest entry onto the
land without the plaintiff's permission gave the plaintiff the right to
damages in a nominal sum.

An action for trespass to chattels was available to seek damages
from anyone who had intentionally or forcibly injured personal
property. The injury could include carrying off the plaintiff's
property or harming it, destroying it, or keeping the plaintiff from
holding or using it as she had a right to do.
Slide 4
Over the years the courts recognized other forms of actions that
permitted recovery for injuries that did not exactly fit the forms of
trespass or trespass on the case.

For example :

1. A continuing trespass was a permanent invasion of someone's
rights, as when a building overhung a neighbor's land.

2. A trespass for mesne profits was a form of action against a
tenant who wrongfully took profits, such as a crop, from the
property while he occupied it.

3. A trespass to try title was a form of action to recover possession
of real property from someone who was not entitled to it. This
action "tried title" so that the court could order possession for the
person who turned out to be the rightful owner.
TYPES OF TRESPASS
Slide 5
TRESPASS TO LAND
Most commonly is described as an intentional and
wrongful invasion of another's real property.

An action for trespass can be maintained by the
owner or anyone else who has a lawful right to
occupy the real property, such as the owner of an
apartment building, a tenant, or a member of the
tenant's family.

The action can be maintained against anyone who
interferes with the right of ownership or possession,
whether the invasion is by a person or by something
that a person has set in motion

Slide 6
WHAT CONSTITUTES TRESPASS
Every unlawful entry onto another's property is trespass, even if
no harm is done to the property.

A person who has a right to come onto the land may become a
trespasser by committing wrongful acts after entry. For example:-

A mail carrier has a privilege to walk up the sidewalk at a private
home but is not entitled to go through the front door.


A person who enters property with permission but stays after he
has been told to leave also commits a trespass.


An intruder cannot defend himself in a trespass action by
showing that the plaintiff did not have a completely valid legal
right to the property.
Slide 7
CHARACTERISTIC OF TRESPASS

1) Actionable per se

Generally, it means that a plaintiff does not have to show actual
damages before having a viable lawsuit. A judge would be
permitted to award damages without the plaintiff proving that
any were actually suffered.

Relevant Case Law

Property Services Sdn Bhd v. Madhill Development Sdn
Bhd (No 2) [1984] 4 CLJ 136]
Slide 8

2) Strict Liability

The plaintiff does not have to show that the defendant
intended to trespass but only that she intended to do
whatever caused the trespass. It is no excuse that the
trespasser mistakenly believed that she was not doing
wrong or that she did not understand the wrong.

Relevant Case Law

Syarikat Kemajuan Kuari (M) Sdn Bhd v. Su Abdullah &
Anor [2003] 1 CLJ 578]
CHARACTERISTIC OF TRESPASS
Slide 9
CONTINUING TRESPASS
A trespass is continuing when the offending
object remains on the property of the person
entitled to possession.
Example of continuing trespass:-
A building or fence that encroaches on a
neighbor's property creates a continuing
trespass
A tree that has fallen across a boundary line.
Slide 10
REMEDIES
A trespass gives the aggrieved party the right to
bring a civil lawsuit and collect damages as
compensation for the interference and for any harm
suffered.
The reason for all of these rules is that the action of
trespass exists to prevent breaches of the peace by
protecting the quiet possession of real property.
Where a structure or object is on the plaintiff's
property, the defendant may be ordered to remove
it.


Slide 11
DEFENSES
In some cases a defendant is not liable for trespass even
though she has intruded onto another's property.

Situations where no trespass is committed

1) Public officials, for example, do not have any special right to
trespass, but a housing inspector with a search warrant can
enter someone's building whether the owner consents or
not.

2) A police officer can pursue a criminal across private
property without liability for trespass. The police officer's
defense to a claim of trespass is her lawful authority to
enter.
Slide 12

3) A hotel employee who enters a guest's room to perform
housekeeping services is not a trespasser because it is
customary to assume that guests want such services. If
charged with trespass by the guest, the hotel would claim
the guest consented to the employee's entry.

4) A landlord does not have the right to enter a tenant's
apartment whenever the landlord wants. However, the
landlord usually has the right to enter to make repairs. The
landlord must arrange a reasonable time for the repairs, but
the tenant's consent to this arrangement is either contained
in the lease or is implied from the landlord's assumption of
responsibility for making repairs inside the apartment.
DEFENSES
Slide 13

5) A person is not guilty of trespass if he goes onto another's
land to protect life or property during an emergency. For
example, a passerby who sees someone pointing a gun at
another person may cross onto the property and subdue the
person with the gun. Someone at the scene of a traffic
accident may go onto private property to pull a victim from
one of the vehicles.

Defense of Consent

6) Permission to enter someone else's property can be given
either by consent or by license. Consent simply means
giving permission or allowing another onto the land. For
example, a person who lets neighborhood children play in
her yard has given consent. Consent may be implied from
all the circumstances. A homeowner who calls a house
painter and asks for an estimate cannot later complain that
the painter trespassed by coming into her yard.
DEFENSES
Slide 14
Defense of License

7) Sometimes consent to enter another's land is called a
license, or legal permission. This license is not necessarily a
certificate and may be in the form of a written agreement.
For example, an electric company might have a license to
enter private property to maintain electrical lines or to read
the electric meter. However, the employees cannot act
unreasonably when they make repairs, and they and the
company are liable for any damage they cause to the
property.

DEFENSES
Slide 15
MITIGATION OF TRESPASS
Eventhough trespass is a strict liability action.
However, the Court would probably award
nominal damages if the Defendant has
mitigate the trespass. Trespass can be
mitigate or stop by:-

1) The defendant has removed the object
on the plaintiff's property.

Slide 16
RELEVANT STATUTE
COMMUNICATIONS AND MULTIMEDIA ACT 1998

Section 214. Inspection of land.

A network facilities provider may, for the purposes of
determining whether any land is suitable for his
purpose of installing, or obtaining access to, network
facilities

enter on, and inspect, the land; and.
Slide 17

Section 215. Installation of network facilities.

A network facilities provider may, for purposes
connected with the provision of network services,
carry out the installation of network facilities if

the provider is authorised to do so by a network
facilities installation permit issued by the
Commission under section 226;
RELEVANT STATUTE
Slide 18
The section is silent on the issue of notice
and license to the landowner.

There are many loopholes in the section
especially on the rights and interest of
network facilities provider i.e. TM for the
purpose of installation of network facilities
and access to network facilities.
RELEVANT STATUTE
Slide 19
CASE STUDY
LEMBAGA LETRIK NEGARA, MALAYSIA v
RAMAKRISHNAN [1982] 2 MLJ 128

Slide 20
SUGGESTIONS
To avoid being held liable under the law of trespass
and to ensure the interest of TM is protected, there
are several suggestions that are useful for TM

Prior written notice should be given before entering
someones property.
If the trespass is substantial to landowner, and TM
can do nothing to mitigate the trespass, then TM
should consider to buy the land by appointing any
private valuer with an appropriate compensation
payable to the landowner. Consultation with TM Legal
Department is needed.
Slide 21
If the landowner wishes to enter to an agreement with
TM, then the network facilities provider should first
consult with TM Legal Department for further advice.

To conduct a land search to the relevant PTD.

To conduct a specific survey towards the land before
the network facilities being installed.
SUGGESTIONS
Slide 22
Q&A SESSION
Munawirah Mohamad
Partner

240A & B
Jalan Melaka Raya 1
Taman Melaka Raya
75000 Melaka, Malaysia

Tel: (+606) 283 4857
Fax: (+606) 284 7868
Email: munawirah@arsa.com.my