III. Who can sue?
Standing to sue for trespass to land is primarily determined by legal possession rather than legal ownership. The proper plaintiff is therefore usually the person who was in actual exclusive possession of the land at the time of the alleged trespass.
Ownership alone does not necessarily give standing. If the owner has parted with possession, for example by granting a tenancy, the owner will generally not be the proper person to sue for trespass during that period.
What is exclusive possession?
To establish the standing necessary to sue, a plaintiff must demonstrate exclusive possession, which requires two distinct elements: a sufficient degree of physical custody and control (factual possession) and an intention to exercise that control on one’s own behalf and for one’s own benefit. Mere physical presence or occupation is not enough. For example, a short-term visitor who stays in a house with the occupier’s permission does not thereby acquire possession and cannot usually sue a third party for trespass.
(i) Factual possession
Factual possession is a question of fact evidenced by occupation or a sufficient degree of physical control over the land to exclude all others from the land. It usually means a person is actually using and controlling the land in a way that shows the outside world he is in charge of it. The type of conduct required depends on the nature of the land; for instance, possession of a flat might be shown by holding the keys, while possession of open land might be shown by building a wall, cultivating crops, or shooting over it.
(ii) Intention to possess
The intention to possess is defined as the intention to exercise physical custody and control on one’s own behalf and for one’s own benefit. Crucially, the plaintiff must have the intention to exclude the world at large, including the paper owner, so far as is reasonably practicable and permitted by law.
It is important to distinguish the intention to possess from the intention to own or acquire title. A person can have the requisite intention to possess even if he does not intend to become the legal owner; the focus is on the intention to keep possession of the land for the time being. Furthermore, an intention to possess can exist even if the person is under a mistaken belief that he has a good title or a lawful tenancy.
Subsoil and airspace
Standing extends to those in possession of the subsoil or the airspace needed for ordinary use. One person may possess the surface while another possesses the minerals or subsoil below, giving each independent standing to sue for intrusions into their respective layers.
Lawful possession not required
The right to sue does not require possession to be lawful. A person in de facto possession (possession in fact) has a title that is good against all the world except those who can show a better right to possession.
This means that a squatter or adverse possessor who has not yet gained legal title still has standing to sue a third-party intruder in trespass.
However, a defendant cannot defeat a possessor’s claim by arguing that a third party has a better title unless the defendant is acting under the authority of that third party.
Standing of specific parties
(i) Legal owners
In the absence of evidence to the contrary, a legal owner is prima facie deemed to be in possession. However, if the owner has granted a lease, the tenant gains exclusive possession and is the only party with standing to sue for ordinary trespass.
(ii) Co-owners
One co-owner can sue a third party in trespass even without the consent of the other joint owners. However, co-owners can only sue each other if there is an ouster (forcible expulsion) or the destruction of the common property. Ouster requires showing that the defendant has occupied the land to the exclusion of the other members.
(iii) Landlords and tenants
A tenant in occupation is the proper plaintiff because he has exclusive possession of the land. This right extends to any type of tenant, including a tenant at sufferance (one who remains after a lease expires without consent) and sub-tenants.
A landlord (reversioner) generally cannot sue for trespass during a lease unless the act causes permanent injury to the property (such as structural damage) that affects his future interest.
(iv) Non-owners
A party who is not the registered owner, such as a mortgagee, must establish that he has obtained a sufficient degree of actual possession in order to sue in trespass.
(v) Adverse possessors and squatters
An adverse possessor can maintain an action against any wrongdoer, that is, a person with no title at all.
(vi) Employees and agents
Occupation by an employee in their capacity as a servant is generally regarded as the possession of the employer. Consequently, the employee cannot sue in trespass, but the employer can.
(vii) Family members of legal owners/tenants
Family members who occupy land together with the legal owner or tenant generally cannot sue for trespass unless they have exclusive possession of the land. In most cases, such family members are regarded merely as licensees.
However, a deserted wife living in the matrimonial home, although she usually has no proprietary interest in the property itself, is considered to have sufficient exclusive possession to bring an action in trespass against a third party.
(viii) Lodgers and licensees
A mere licensee, such as a guest in a hotel, or a lodger generally does not have exclusive possession and cannot sue in trespass. However, an occupational licensee with a contractual right to occupy may be granted an order for possession against trespassers if it is necessary to vindicate his rights. For example, a person is granted a contractual licence to occupy and operate a market stall within larger retail premises. The licensor (the owner of the larger premises) is unavailable to take action. A stranger moves into the stall and refuses to leave. Although the licensee does not have exclusive possession in the strict proprietary sense, a court may grant him an order for possession against the trespasser because it is necessary to give effect to his contractual right to occupy and trade from that space.
Possession by relation
Where a person has a legal right to immediate possession but is not in actual possession at the time of a trespass, and later enters the land, that person can sue once he has made a formal entry onto the land. The law may in some circumstances treat that person as having been in possession from the time when the right of entry first arose.
This allows that person to sue for trespasses committed in the interval between the accrual of the right and the actual entry.
