Trespass to land is a legal concept that refers to the unlawful interference with another person’s right to possess and enjoy their property. It involves the unauthorized entry onto another person’s land or causing some form of interference with the use and enjoyment of the land. Trespass to land is a civil wrong, and individuals who commit this tort may be held liable for damages.

A man’s home is his castle:

In the Federal Constitution, one of the basic rights of a person as in Article 13(1) is that he cannot be deprived of his right to his property except as provided under the law.

So speaking of land, what is the legal definition of land?

According to Section 5 of the National Land Code, land is defined as:

  1. that surface of the earth and all substances forming that surface;
  2. the earth below the surface and all substances therein;
  3. all vegetation and other natural products, whether or not requiring the periodical application of labour to their production, and whether on or below the surface;
  4. all things attached to the earth or permanently fastened to anything attached to the earth, whether on or below the surface; and
  5. land covered by water;

Being the legal owner of the land, as stated in Section 44(1)(a); The right to use and enjoy exclusively the air space above the surface of the land and the land on the surface, to the extent necessary and reasonable for the use and enjoyment of the land.

Elements of trespass to land

First – The mental state of the intruder. In summary, trespass can be considered to occur when there is a clear intention to trespass, the trespass is voluntary, and the trespass is the expected result of the trespasser’s act.

Second – Interference. This disturbance can occur in three ways, namely trespassing on other people’s land, secondly, trespassing on that land and continuing to remain on that land, and thirdly, the trespasser has placed an object on that land.

Trespass to airspace of land

Apart from the surface of the land, the landowner also has the right to the airspace of his land.

However, the right to airspace over its land is limited. The right to airspace is limited to the normal use and enjoyment of the land. There is a need to strike a balance between the owner’s right to enjoy the use of his land and the public’s right to use the airspace over his land.

Among the examples of situations where the airspace of the land can be considered to have been encroached is when the signs installed have entered the area of ​​the airspace of the adjacent land.

Situation: I found my land has been invaded and used by a third party, what are my rights?

As the legal owner of land, as stated in Section 44 of the National Land Code, you have the right to enjoy and use your land exclusively.

So if you find that your land has been encroached upon, you have the right to take action against the encroacher.

This invasion can happen in many ways, for example, your land neighbor has built a fence and entered your area.

Case: 

Kevin a/l Kanna v Nona Sdn Bhd [2017] MLJU 471

In this case, the plaintiff alleged that the defendants or their representatives, agents, or employees unlawfully trespassed on their land using machinery, causing damage to the plaintiff’s property under their care. As a result, the plaintiff had to cease operations on the land, leading to damages and losses. The issues presented for the court’s decision included determining the defendants’ responsibility for the trespass, assessing the property damage and losses incurred by the plaintiff, and deciding whether the plaintiff had the right to compensation for the damages.

The court found in favour of the plaintiff, stating that the defendants’ actions constituted trespass and were not in accordance with the law. The plaintiff’s claims were granted, emphasising that the defendants could not unilaterally demolish the plaintiff’s workshop without following legal procedures, and such actions were deemed excessive and not bona fide.

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