Trespass

Question	Answer
1 Has there been...	Has there been a trespass?
1 a Matchitt	Matchitt - Trespass = "direct interference" with land where the plaintiff must have "possession".
1.1 Has there been ...	Has there been "direct interference"?
1.1 a accidental?	Must be a voluntary interference, cannot be accidental.
1.1 b smell	Must be a physical act (cannot be smell).
1.1 c loss	There doesn't have to be a damage or a loss.
1.2 Do they have...	Do they have possession?
1.2 a Test	Is there exclusive possession? Do lease v license test in Fatac.
1.2 b extend	Does ownership extend to that area?
1.2 b (1) Star Energy	Star Energy: 1. Possession if own land. 2. You own the land below but to a certain point. 3. A well would constitute.
1.2 b (2) Bernstein	Bernstein: It's difficult to exclude people from airspace.
Why are neither of the previous cases binding?	These cases are starting points but cannot be precedent due to varying circumstances.
1.2 b (3) De Richaumont	De Richaumont: 1. Property rights are absolute. 2. PLA s319 is broad. 3. Court can allow you into neighbouring land for anything "necessary or desirable".
Why do you do this test if they are the owner?	Usually owner has possession but this is not always the case.
1.3 What if....	What if they don't have possession?
1.3 a Do they have the right to ...	Do they have the right too... 1. Action for recovery. 2. Trespass by relation. 3. Trespass to the reversion.
1.3 a (1) Star Energy	Star Energy - Damage to reversion = those who will get the land can sue for the damage caused to their reversionary interest.
1.3 b trespass & license?	It is unclear in NZ whether you can sue in trespass if you have a license.
1.3 b (1) Sealink	Sealink: 1. They only have contractual rights. 2. Allowing them to sue in trespass imposes liability on a non-existent third party.
1.3 b (2) Lockwood	Lockwood: 1. Licensee cannot sue for trespass but their license may impose liability/loss on owner. 2. Mortgagees can sue in trespass.
1.3 b (3) Georgski	Georgski: Licensees don't have possession as the owner can withdraw their access at any time.
1.3 b (4) Manchester	Manchester: 1. UK case so only use if similar case. 2. Says that licenses that come with occupation should be able to bring a trespass claim if sufficient interest.
1.3 b (5) Cousins v Wilson	Cousins v Wilson You cannot sue someone if they have equitable interest but aren't in possession. (Purchaser in-between).
2 What _____ do they have?	What remedies do they have?
2 a Damages	Damages: Cost of reinstatement and/or loss in value.
2 b Recovery	Action for Recovery of Land: 1. If you had right to immediate possession when action began and you have acquired possession by the time you sue. 2. Success of application in NZ is uncertain.
2 c Relation	Trespass by Relation: Not in possession at the time of the trespass but have the right to immediate possession. When you do get possession you can sue through trespass by relation.
2 d Reversion	Damage to Reversion: Those who will get the land can sue for the damage caused to their reversionary interest.

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	Created by Sophia Lynch over 3 years ago