Trespassing in NSW is a crime just like in any other Australian state or country. A person commits trespassing if they enter an owner's property without permission or a lawful excuse. In New South Wales, this is a criminal offence and is considered a breach of the legal and moral rights of an individual. Indeed, it's a nuisance.
Here are some signs that trespassers may have been around your property:
- Muddy footprints
- Broken bottles and trash along your property as if a group had partied on your property
- Stolen property like lawn equipment, decorations, or plants
- Unruly people who want to cause commotion on your property
All of these sound stressful and annoying, especially if you take good care of your property. Thankfully, these trespassers won't get away scot-free from the law. The state of New South Wales has specific laws and regulations regarding trespassing, along with penalties for trespassers. Let's look at them.
| Here are some fast facts for trespassing in other Australian
states: - Trespass is a civil action in the Australian Capital Territory (ACT). - In Victoria, trespassing can show up as a disclosable court outcome on a criminal history check. - In the ACT, the police have the power to prosecute trespass offenders under the Trespass on Territory Land Act 1932. |
Legal Jargon Explained for You
1. Trespass and Break and Enter
The Inclosed Lands Protection Act 1901 governs offences relating to trespass offences, and the Crimes Act 1900 regulates break and enter offences. These two concepts are used synonymously, but it's important to highlight their stark differences.
Looking at both of the terms, we can safely assume that break and enter is a more serious offence. A person who commits a break and enter offence means they broke and entered a property. Think of criminals who broke into houses and intend to steal valuable items from a house. In more extreme cases, such criminals may want to harm the homeowner or whoever currently stays in the property.
Now, let's talk about some common misconceptions of trespassing. What if someone comes onto your property to bring a package or pay you a visit? Section 4 of the Inclosed Lands Protection Act provides that mailmen or people who deliver packages to you are not trespassing or breaking the law.
However, if you ask someone to leave a property you own or live in, they are under an obligation to leave. The Inclosed Lands Protection Act states that it is illegal for them to stay after being asked to leave. The Crimes Act 1900, on the other hand, punishes the following acts of break and enter:
- Breaking, entering, and assaulting with intent to murder (Section 110)
- Breaking and entering a dwelling house with intent to commit a serious indictable offence (Section 111 and Section 112)
- Breaking, entering, and committing a serious indictable offence (Section 113)
2. Occupier
Who is an occupier? 'Occupier' is a term often used in legislation. It pertains to the people who are actually residing or inhabiting the property. Therefore, depending on the situation, it may be the owner, tenant, licensee, or another person who has permission to occupy the property. Occupation does not confer any special property rights on the occupier.
If someone enters your personal property without your permission, you have the right to ask them to leave under the rule on trespass. They are trespassing if they refuse to leave when asked to do so, and you may use reasonable force to have them removed.
NSW Legislations Related to Trespassing
In New South Wales, there are various legislations that are related to trespassing.
- Access to Neighbouring Land Act 2000. This law allows a person to enter another person's property upon application to the Local Court for an order allowing entry onto the neighbouring land.
- Conveyancing Act 1919. This Act provides for the requirements for creating, modifying and extinguishing easements. An easement is a right to use a certain part of someone else's land, like a right-of-way across a neighbour's property.
- Crimes Act 1900. The Act punishes a person with a minimum or maximum penalty who breaks and enters a residential house or any other building and commits or intends to commit an indictable offence. The law provides for imprisonment for 14 years as a penalty for such violation.
- Dividing Fences Act 1991. This law aims to regulate neighbours' responsibilities towards dividing fences and help them settle disputes without further escalation.
- Inclosed Lands Protection Act 1901. This Act punishes any person who enters a fenced or enclosed property for unlawful entry and offensive conduct.
- Summary Offences Act 1988. Under the Summary Offences Act a person must not enter into, or remain in someone's house or yard, or business premises without their permission, unless they have a lawful reason to be there.
How To Prevent Trespassing on Your Property in NSW
Trespassing on your property can be a nuisance and potentially dangerous for you and your family's normal enjoyment and safety. This can also happen in public places. For example, the public highway is a public place which the public may enjoy for any reasonable purpose, provided that the activity in question does not amount to a public or private nuisance.
Nevertheless, it's important to focus on what you can do to prevent trespassing. Let's look at some ways you can prevent trespassers from entering your property.
- Installing a fence around your property is an effective way to prevent trespassing. Make sure the fence is strong and high enough to discourage trespassers from climbing over it.
- You can also post signs that indicate private property or no trespassing can help deter people from entering your property. It's a first warning for trespassers.
- If your property has a gate, make sure it is locked and secure at all times. Consider installing a gate with a keypad or remote control access to further increase security. For added security, you may also install security cameras to help you identify potential trespassers. Security guards are also recommended for large properties.
- Do you have any overgrown bushes or plants? Trespassers can actually use them for cover. Trim them down and maintain them from time to time.
- Do not be negligent! If you fail to take reasonable precautions to prevent reasonably foreseeable harm, you will end up being a victim of trespassers.
- Communicate with the trespassers like a reasonable person. Sometimes this is the best way to settle such cases. Maybe the trespassers didn't mean to trespass on your property.
- You can sue for trespass without proving any damages were caused.
Can the Police Enter Your Property at Any Time?
Now, this is a hot topic for most homeowners. We can see in many documentaries or videos of homeowners shouting "trespassers!" at the police when they're in their homes. To answer this, yes, the police can enter your property. However, they may only do this when it is reasonably necessary to:
- Investigate whether a domestic violence offence was committed;
- Assist an injured person;
- Exercise lawful power to arrest someone; or
- Prevent the commission of a domestic violence offence.
Like all police investigations, police must issue a search warrant before entering a house or property.
Trespassing Case Study
In this case, two police officers engaged in some particularly reprehensible behaviour when they chose to pursue young Warren Ibbett, who had previously spent time for drug-related offences. Warren was driving, but the officers had no additional evidence to believe he possessed narcotics. He drove back to his mother's house, where he was living, and into the garage after they began pursuing him at a high rate of speed.
Then, he opened the roller door, but one of the officers, who was wearing plain clothes, rolled under it and jumped up while shrieking and waving his gun. When Dorothy, Warren's mother, who had been asleep, heard the ruckus, she entered the garage from the house and was greeted by the police holding their gun and telling her to open the door so his partner could enter.
Warren and the car were searched after additional officers showed up, but no drugs were discovered. Since there was no legitimate justification for the officers' behaviour, the State agreed that they had engaged in trespassing on private property and assault.
In addition to "ordinary" damages, Mrs. Ibbett was awarded aggravated damages and exemplary ("punitive") damages against the State as a result of her successful trespass and assault claim. The Court emphasised in this case that the right of the plaintiff to keep exclusive ownership of her [or his] place of habitation, free from unauthorised bodily interference by strangers, is protected by the law against trespass to land.
Let's Catch the Trespassers in Your Area
Trespassing is a serious offence in NSW. No one wants an unknown person hanging out or disturbing the peace of your property. Since trespassing can cause property damage or personal harm, it is important that individuals seek legal help.
Individuals who also face a trespass charge should seek the services of a criminal lawyer. We recommend that a defendant plead an honest and reasonable mistake as a defence against trespassing charges.
Our team of experienced criminal lawyers at JB Solicitors can provide legal advice, represent the individual in the local or supreme court, and negotiate on their behalf. Seeking legal assistance can help individuals facing trespassing charges to navigate the legal system and achieve a fair outcome.
Contact us today if you need help with legal or civil action against trespassers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
