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Trespass and implied licences: The High Court considers entry to land

14 December 2020

#Dispute Resolution & Litigation

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Trespass and implied licences: The High Court considers entry to land

Roy v O’Neill considers when a socially-acceptable form of entry to land, such as walking up a path and knocking on a door, becomes a trespass. The case itself considered police entering a front yard and ringing the door-bell. Its relevance extends beyond police powers, to when usual forms of entry onto commercial, government or residential land may be classifiable as trespass. This has to do with limits on ‘implied licences to enter’.

Implied licences to enter land

No, not even lawyers write contracts permitting a neighbour knocking on a door and requesting a cup of sugar. The neighbour just does it and no one complains. Why is that? Because the law recognises an implied licence to do so – and it’s also normal.

However, implied licences to enter land have implied limitations or may be expressly limited. Express limitations may come from statute. For example, entry into a public park is usually lawful, but entry with a knife may be prohibited, yet even this can be complicated – say the knife is for cutting a birthday cake?

The High Court focuses on implied limitations. A person’s general right to knock on your front door does not apply if they intend to, say, rob you, attack you, or interfere with your land - like dumping rubbish. With some qualifications, not only would this conduct breach the law, but actually entering the land with this purpose can also make that entry a trespass. The licence’s terms do not permit this – by implication it is limited.

This restriction may also be relevant where an individual’s property backs onto public land or commercial land used for crossing – like a large carpark. On one view, accessing the land will often be lawful under an implied licence. People can generally traverse public land - but there are exceptions, such as ‘inclosed lands’. However, the reason or purpose for access can transform such entry into trespass. For example, if the person intends to exclusively possess part of the land, and they try and do so, this entry goes beyond the implied licence and can become a trespass.

Consider the utility in notifying express entry limitations

The purpose of entry is important when controlling access to shopping centres or public buildings, such as office lobbies. Troublemakers, or social disrupters, are generally not wanted. How then to deal with this? Implied restrictions on implied licences for entry are generally insufficient. The main function of an implied limitation is restraining patently socially egregious conduct. If somewhat normal but undesirable conduct is not wanted, such as pushing delivery trollies through lobbies, or talking in a library, or skating in a shopping centre, are unwelcome, a sign may be necessary. Signage creates an express limitation, ending the implied licence for the identified purposes.

What now?

Some things worth thinking over:

  • people often have a limited right to enter all sorts of land – front yards, public land, commercial land used for public purposes. This is an implied licence of entry
  • entry with a particularly reprehensible intent may withdraw an implied licence, making entry a trespass
  • however, often express entry restrictions are needed by signage or other notification. This restrains entry for unwanted purposes, but which would otherwise be consistent with an implied licence for entry. Examples include prohibiting deliveries in a lobby, dress codes, no alcohol, etc.

Authors: Bede Haines

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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