Pokémon Go and trespass to land

The popularity of the contagious app has brought trespass laws to the forefront of many landowners' minds; Sarah Richardson explains how a claim can be brought and the possible defences and remedies

Pokémon Go players have hit streets,
shops, parks, libraries, and churches, among many other public places, aiming
to catch characters, not realising that in their quest they could well be venturing onto private land and in turn be liable for an accidental trespass.

Pokémon Go uses a technique called 'augmented reality' to allow players to use their smartphones to hunt and capture cartoon monsters or Pokémon characters in the real world. Some businesses are using the game to their advantage by dropping 'lures', in-game items which attract Pokémon and,
in turn, crowds of people to their business.

However, for farmers and landowners the situation is likely to be very different, with a risk
for both the landowner and the trespasser should someone venture onto private land. The Country Land and Business Association has received several reports from its members of people trespassing while using their smartphones to play the game.

What comprises a trespass to land?

Trespass to land is designed to protect landowners, and anyone else who is lawfully in possession of land, against direct and unjustifiable interference with their possession of that land. The interference could be by way of physical entry on to the land, for example wrongly setting foot on, riding, or driving over it; it could be an abuse of a right of entry; placing or fixing something on the land; or pulling down anything permanently fixed to it. Even the slightest crossing of the boundary into someone's land is sufficient to result in a trespass. Similarly, if someone remains on land after their permission to do so has been revoked, this can amount to trespass.

Trespass to land also extends to the airspace above and the soil below. So, for example, it would be a trespass to tunnel beneath someone else's land, or to put up a sign that projects over someone else's land. Other examples include siting caravans on someone else's land and the excessive use of an easement.

It is an intentional tort - it is the act of entry onto the land which must be intentional, not the act of trespass. The cause of action arises the moment the trespass occurs. This means that negligent or accidental trespass - such as in the case of the Pokémon Go players - can incur liability, as well as intentional trespass, and claims for trespass to land are actionable without proof of damage. However, in reality a landowner may only consider bringing a claim if there has been some damage to their land or property, due to the costs involved in making such a claim.

Trespass to land is not restricted to human trespass: landowners can be liable in trespass
where their animals stray onto another's land,
if the landowner intended them to enter the claimant's land or failed to take reasonable care
to prevent their entry, knowing there was a real risk that they would do so.

Trespass will be a problem for landowners, particularly if this leads to damage or disturbance
to crops or livestock, to nature reserves and land set aside for environmental work, or where agricultural machinery is at work on the land.

Only those with possession of the land at the time of trespass can bring a claim. It is not sufficient to be physically on the land or to have control over the land. A licensee cannot, therefore, sue for trespass because it is an injury to a possessory right.

Agricultural tenants can pursue an action in trespass, as the tenant is in possession of the land
by virtue of their agricultural tenancy. If it is an Agricultural Holdings Act 1986 tenancy, the tenant
is likely to be contractually bound to take action to prevent trespass. If, for example, rubbish is being left on the land, the tenant may also be liable to clear up and maintain the land in accordance with the laws of good husbandry, both under the tenancy and the 1986 Act.

Civil trespass is usually actionable in the courts, but the costs and time involved can be significant and possibly disproportionate, as previously mentioned.

Defences

A defendant may argue that they had a right to possession at the time of the alleged trespass, acting under a licence (either express or implied) from the party in possession.

Other possible defences include public or private necessity, where the defendant will need to show an actual or reasonably perceived danger in relation to which reasonable steps were taken, and justification by law (also known as 'legitimised use'), where the defendant was legally authorised to enter the land, for example police entry under a warrant.

Remedies

If a civil claim is successfully brought, a landowner may be able seek damages or an injunction, or both. In practice, however, damages are likely to
be awarded only in cases where there is physical damage caused or where the landowner is deprived of their use of the land. In certain circumstances, criminal charges can be brought against a trespasser.

Other remedies could include self-help remedies such as using reasonable force to resist wrongful or attempted entry by a trespasser, for example erecting a fence.

In terms of a criminal action for trespass, the right to use reasonable force has evolved through case law and there is no single answer as to what is reasonable - it will always depend on the prevailing circumstances.

However, a landowner is not entitled to assault or harm a trespasser in any way, and to do so
would give rise to potential criminal liability for
the landowner. In the case of Norfolk farmer Tony Martin, for example, it was obviously unreasonable for him to shoot dead a teenager who had entered his remote farmhouse with the intention of committing theft.

In another case, a man who found a trespasser climbing up a low ladder that was leaning against his house shook and overturned the ladder, throwing the intruder to the ground. Although the trespasser was not injured, the judge said that even this amount of force was unreasonable.

Another possible remedy in a successful claim
for trespass to land would be to seek a court order for possession to recover the land from a trespasser who remains on it. The claimant could also claim mesne profits as a form of consequential damages for the time that the claimant has been kept out of possession of their land. In doing so, the claimant can seek a reasonable rent for the defendant's possession of the property, damages for deterioration, and the reasonable costs of getting possession.

Risk limitation

On a practical note, there is the additional risk for
a landowner of a trespasser being injured while on their land and then making a claim against them. This is because a landowner owes a duty of care to trespassers, albeit a restricted duty, even though they are, by definition, uninvited. The landowner must be aware of the danger (or have reasonable grounds to believe it exists); they must know (or have reasonable grounds to believe) that the trespasser is or may come into the vicinity of the danger; and the risk must be one against which the occupier may reasonably be expected to offer some protection.

To prevent trespass and limit the risks, landowners should take extra security and risk management precautions, such as:

• Reviewing the land holding and the risk profile of any features and possibly keeping a risk assessment record;

• Improving fencing and security, particularly where there are identifiable hazards;

• Putting up signs to stress the land is private, such as 'keep out' and warning signs;

• Putting up signs to detail that the landowner does not accept liability for any damage caused or personal injury sustained; and

• Checking all insurance policies are up to date.

Sarah Richardson is a solicitor at Lodders Solicitors @LoddersAgTeam www.lodders.co.uk