Key Takeaways
- • Trespass to land is actionable per se — no damage required; nominal damages available without proof of loss
- • The act must be direct and voluntary — consequential entries may be negligence, not trespass
- • Continuing trespass gives a fresh cause of action each day — each day of wrongful occupation is a new tort
- • Licence is the primary defence — revocable at will unless coupled with an interest or contractual
- • Mesne profits = fair rental value of land during wrongful occupation (not actual profits of the trespasser)
- • Trespass to Property Act (provincial offence) applies alongside, not instead of, civil remedies
- • Adverse possession under Real Property Limitations Act: 10 years open, continuous, exclusive possession as of right (Registry Act land; generally not available for LT absolute title after 2006)
Elements of Trespass to Land
Trespass to land is a direct, voluntary, and intentional interference with another person's possession of land. The interference need not cause any actual damage — trespass is actionable per se. The key elements are:
- Direct act — the defendant's body, a thing under their control, or something they set in motion must directly enter the plaintiff's land. The directness requirement distinguishes trespass from private nuisance (indirect interference with enjoyment of land). Throwing debris onto neighbouring land is trespass; dust or noise from an adjoining property is nuisance.
- Voluntary act — the defendant must have chosen to enter or remain. Entering land while sleepwalking or being carried unconsciously by a third party is not trespass because there is no voluntary act.
- Intentional act — the intent required is the intent to do the physical act (enter the land), not the intent to trespass. A person who enters another's land believing it to be their own still commits trespass — honest mistake of fact is not a defence to the tort itself (though it may reduce damages or be relevant to relief).
- Land in possession of the plaintiff — the plaintiff must have possession (not necessarily ownership) at the time of the entry. A tenant can sue for trespass; a licence holder generally cannot (the trespass is against the licensor, not the licensee, unless the licensee has exclusive possession).
- No lawful authority or consent — the entry must be without legal justification or the plaintiff's permission.
Extent of Land: Cuius Est Solum
The principle cuius est solum, eius est usque ad coelum et ad inferos — whoever owns the soil owns everything above and below — applies in modified form in Ontario. Trespass extends to airspace at heights reasonably used in connection with the land (Berntt v Vancouver (City); confirmed in Ontario caselaw). Deep underground strata (mines and minerals) may be separately owned under the Mining Act. Overhanging branches and encroaching structures are common trespass scenarios in Ontario practice.
Continuing Trespass
Where a trespass is not a single act but a continuing state of affairs (e.g., a structure, pile of materials, or person remaining on the plaintiff's land), each day of continuation constitutes a fresh cause of action. This has important consequences:
- The plaintiff can claim damages for the entire period of continuing trespass, subject only to the two-year limitation period running back from the date of the claim (claims for damages more than two years before the action are statute-barred)
- The continuing nature supports an injunction to compel removal — the trespasser cannot purchase an ongoing right to trespass by paying damages for the initial entry
- Mesne profits (see below) accrue for each day of continued wrongful occupation
Defences to Trespass to Land
| Defence | Requirements / Limits |
|---|---|
| Licence | Express or implied permission from the person in possession. Bare licences (not coupled with an interest, not contractual) are revocable at will — reasonable notice of revocation required before trespass arises. Contractual licences may not be revocable if breach would be actionable in contract. |
| Consent | Consent may be express or implied from the circumstances (e.g., common use of a shared access route). Consent obtained by fraud or misrepresentation is void. Consent extends only to the authorized purpose — entering under one authorization to commit another act (e.g., entering to read a meter but then examining private papers) is trespass ab initio. |
| Legal authority / public right | Statutory authority (bailiff executing writ of possession, police entering under warrant, utility company exercising statutory easement, building inspector exercising statutory power of entry under municipal by-law or Building Code Act). The authority must be properly exercised within its scope — acting outside the statutory authority is trespass. |
| Necessity | Entry onto another's land to prevent greater harm. Private necessity (entering to retrieve your own property at risk of destruction, breaking down a door to extinguish a fire spreading to neighbours) provides a defence to liability but may require compensation. True emergency necessity (preventing loss of life) may negate liability entirely. |
| Right of way / easement | A registered easement or prescriptive right of way over the land. The use must be within the scope of the easement — use beyond the authorized purpose is trespass. |
Remedies for Trespass to Land
Nominal Damages
Because trespass is actionable per se, a plaintiff who proves trespass but cannot establish actual damage is entitled to nominal damages — a small sum (typically $1 to $500) acknowledging the violation of their legal right. This is significant because it confirms the right and can support injunctive relief.
Compensatory Damages
Compensatory damages restore the plaintiff to the position they would have been in without the trespass: physical damage to the land (repair costs, loss of value), damage to buildings or structures, consequential losses flowing from the interference, and emotional distress in egregious cases.
Mesne Profits
Mesne profits are recoverable for the period of wrongful occupation — the fair rental or use value of the land while the trespasser was in unlawful possession. The measure is not the profit the defendant made, but the value of what the plaintiff was deprived of (the occupation value or market rental value). Mesne profits are commonly claimed in:
- Landlord and tenant disputes after expiry of tenancy or unlawful holdover
- Adverse possession claims (where the possessor fails to make out a prescriptive title)
- Encroachment by neighbouring buildings
- Recovery of land from a trespasser after prolonged wrongful occupation
Injunction
An injunction requiring removal of a trespassory structure or cessation of trespassory conduct is available where damages are inadequate. Courts exercise discretion and may decline to order removal where:
- The encroachment is trivial and removal disproportionately costly
- The plaintiff has acquiesced or delayed unreasonably (laches)
- Damages in lieu (Courts of Justice Act s.99) adequately compensate
Following Jaggard v Sawyer [1995] 2 All ER 189 principles (applied in Ontario), the court considers whether the interference is small, capable of being estimated in money, adequately compensated by a small money payment, and whether it would be oppressive to grant the injunction given the defendant's conduct.
Encroachment by Buildings and Structures
Encroachment — where a building, fence, retaining wall, or eave overhangs or physically crosses the boundary — is a common form of trespass in Ontario real estate practice. Key considerations:
- The owner of the encroaching structure is a trespasser even if they did not know the structure crossed the boundary line
- A purchaser who acquires a property with an encroaching structure may become liable for the continuing trespass after purchase (prudent title search should identify encroachments using a survey)
- Remedies: injunction (mandatory removal), damages in lieu of injunction, or a licence agreement / easement purchased from the neighbour to regularize the encroachment
- Title insurance may cover encroachments for both owner and lender policies — review exceptions before relying on coverage
- An AOLS-surveyor's reference plan (deposited plan of survey) is typically required to definitively establish the boundary and the extent of encroachment
The Trespass to Property Act (Ontario)
The Trespass to Property Act R.S.O. 1990, c. T.21 creates provincial regulatory offences (not civil causes of action) for entering premises without authority:
- A person who enters premises or engages in an activity on premises prohibited by the occupier (by notice, sign, or verbal direction) is guilty of an offence
- Premises are defined broadly to include all buildings, lands, and water (including agricultural land and woodlands)
- Fines: up to $10,000 for an individual; charges prosecuted in Ontario Court of Justice by Crown Attorney (police-lay charges)
- The TPA does not create a private right of action for compensation — the occupier must pursue civil trespass in the Superior Court for damages and injunctions
- Section 9 civil action — s.9 creates a cause of action for the provincial offence but is limited: a person convicted of a TPA offence is liable to the occupier for damages arising from the offence. This is separate from and in addition to the common law tort.
Adverse Possession in Ontario
Adverse possession (possessory title) allows a person who has been in open, continuous, exclusive, and uninterrupted possession of another's land for 10 years under the Real Property Limitations Act R.S.O. 1990, c. L.15 to extinguish the paper title holder's right to recover the land.
Requirements for adverse possession in Ontario:
- Open — visible use that puts the paper owner on notice
- Continuous — consistent with the nature of the land for the full 10-year period
- Exclusive — to the exclusion of the paper owner and others with a better right
- As of right — not by permission; a licence defeats adverse possession
- Inconsistent use — Ontario courts have emphasized the use must be inconsistent with the paper title holder's intended use of the land (Keefer v Arillotta (1976) 13 OR (2d) 680 CA)
Land Titles Act — Limitations Act 2002 Bar
The Limitations Act 2002 effectively abolished adverse possession for Land Titles (absolute title) land where the 10-year period has not already accrued as of October 19, 2006. Adverse possession claims remain available on Registry Act land and Land Titles Qualified (LTQ) land where use pre-dates the conversion. Always check title quality before advising a client on possessory title claims.
Frequently Asked Questions
Can I sue for trespass if the neighbour's tree branches overhang my property?
Yes — overhanging branches are a form of continuing trespass because the tree physically enters your airspace and land. The traditional common law remedy was self-help (cutting back branches to the boundary line at your own expense). You can also sue for an injunction requiring the neighbour to trim the branches or for damages if the branches cause harm. Ontario courts may award damages for loss of amenity or the cost of cutting. Note: do not enter the neighbour's land to cut the roots without permission — that would itself be trespass.
What is the difference between trespass and private nuisance?
Trespass requires a direct physical entry onto or into the plaintiff's land (including things under the defendant's control placed onto the land). Private nuisance is an indirect interference with the plaintiff's use and enjoyment of their land (noise, smell, vibration, smoke). Trespass is actionable per se (no damage needed); private nuisance requires proof of unreasonable interference causing actual damage. Both can be remedied by injunction and damages.
If a contractor enters my land without permission to install a utility, what are my remedies?
You can claim damages for any physical damage to the land, mesne profits for the period of occupation, and an injunction to prevent further interference. If the utility holds a registered easement, the entry may be authorized — check the registered instrument. If the utility is exercising a statutory power of entry (Ontario Energy Board Act, Municipal Act), the power must be properly exercised; entries outside the statutory scope are trespass. Expropriation compensation may apply if the entry effectively amounts to a taking.
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