Mark Pawlowski examines the court's approach to permanent encroachment of land

In most trespass cases, the defendant’s conduct involves a mere temporary occupation or user of the claimant’s land without permanently depriving them of their possession.

In these cases, the court will invariably grant the claimant an injunction requiring the trespasser to desist from any continuance of the trespass and award damages representing the market rental value of the property occupied or used for the period of the wrongful occupation or user.

But what are the claimant’s legal remedies if the trespass takes the form of a permanent encroachment onto their land, for example, by the erection of a building?

Discretionary approach

The courts have traditionally retained a dis...

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