Trespass and sticky beak neighbours
We live in a modern society where people interact and make contact both announced and unannounced. And part of living in today’s world means we consent to these planned and spontaneous everyday meetings with our fellow human beings. There will be times when you want to enjoy your privacy. You don’t want to be bothered by people coming onto your property unannounced or by overly intrusive neighbours. The point may be reached where these ‘everyday interactions’ overstep what is reasonable and become an interference. At what point does this interference become trespass?
What is trespassing?
A trespasser is someone who enters onto your land without invitation. However that doesn’t mean that they are breaking any law at the point they enter your property. For example, a courier, door to door salesman or friendly neighbour paying you a visit, has an implied invitation to enter, until you tell them to leave. Under the law of trespass, if someone enters the property without permission you can ask them to leave. If they refuse to go when asked, from that point they are committing a trespass. Staying when being told they are not welcome causes interference with your land and this is a civil (non-criminal) wrong. A trespasser can even be sued for doing it, particularly if they cause any damage to your property.
How to get rid of a trespasser
You can use reasonable force to remove a trespasser but remember that there is a very fine line between reasonable force and assault. For example, if you can’t get someone off your property by gently directing them to the gate or boundary, then you need to call the police. The best approach is definitely to NOT touch someone trespassing and instead simply call the police when they won’t leave. If someone is actually inside your house and won’t leave when asked you can try to coax them outside the house, or call the police.
If you feel at any point your safety is at risk by a trespasser’s behaviour, remove yourself from that space and immediately call the police on 000.
What behaviour is not trespassing
♦ Because trespass requires a physical interference it therefore doesn’t apply to a person who merely follows or watches or keeps a person under surveillance without any threat, or who remains outside the land to carry out surveillance. So if Mr Smith next door likes to watch you through his venetian blinds, invest in a hedge or some thicker curtains.
♦ A person invited on to your property, for example for a garage sale or an open house inspection, is only entitled to be there for that purpose and their right to remain evaporates as soon as you ask them to leave.
♦ A neighbour can ask for a court order that lets them or their tradespeople enter your land for a limited time so that they can carry out a specific task, such as mending a fence or painting their house if it’s close to the boundary. This can occur when negotiations between neighbours fall down.
♦ Police are also allowed to enter onto your property if they have a warrant.
There are some exceptions here such as:
◊ The police believe that a serious offence will be (or has been) committed.
◊ Entry is necessary to stop a breach of the peace
◊ There has been a breach of an intervention order
◊ The police are chasing someone who has escaped from custody
◊ The police have a reasonable belief that illegal drugs are on the premises
Other forms of trespass
⊗ People don’t have any right to enter your land to retrieve something, unless you’ve told them they can. However, if they have entered your land previously and you haven’t complained, a court may feel that you’ve given your permission.
⊗ Pets can’t come onto your property either. If, for instance, a neighbour’s dog comes onto your land, you have the right to call the local council’s dog catcher. However keep in mind that if you previously let a neighbour enter your land (or didn’t object when they did), you have to withdraw your permission or they will have an implied right to enter.
⊗ A trespass can also be committed by causing an object to cross over onto a neighbouring property, for example, throwing an object on the neighbour’s roof or at a neighbour’s pet.
⊗ A neighbour who throws rubbish over a boundary commits an offence closely related to trespass. If this is happening try to get some video evidence for the police or the courts.
Fines can be applied to grubby neighbours treating your property as their tip.
⊗ Gatecrashers at a party can also be guilty of trespass if they fail to leave when requested to do so.
THE STICKY BEAK
Can your neighbour look over your fence?
Unfortunately, there’s not much legal right to neighbourhood privacy in Australia. Very few cases dealing with this have been successful in our courts. The odd case where damages for invasion of privacy we’re proved involved very extreme cases. So if a neighbour can see into your backyard, they’re allowed to look at or listen to what’s going on. You can always try and get to know your neighbour in the hope that any sticky beaking will stop.
If that doesn’t work try to block their view by building a higher fence or planting shrubs or trees around the perimeter of your land. (Keep in mind that if a hedges blocks your neighbour’s sunlight (or view), a court might order you to remove it.)
If your neighbour’s behaviour is bordering on harassment, contact the police and try to obtain a personal protection order from the local or Magistrates Court. There is also no prohibition on taking photographs of private property from public land, unless the conduct amounts to stalking or the intent is to ‘peep or pry’ on an individual. If this is the case you should refer the matter to the police. For example in NSW, anyone who is in, on or near your house without reason who peep or pry on you or your family can be liable on conviction before the Local Court to imprisonment for 3 months, or to a fine of 2 penalty units. (NSW Crimes Act 1900 – Section 547C)
If you live in strata, residential tenancy, retirement village or residential park accommodation, check to see whether specific obligations apply concerning neighbour privacy and safety.
The dreaded surveillance cameras
If your neighbour has a surveillance camera pointed at your house and you are worried about your privacy, the best thing to do is talk to your neighbour about it. If this doesn’t work you could approach your local community justice or neighbourhood mediation centre for help resolving the issue. Surveillance cameras operated by individuals are not covered under national laws, but they may be covered by state or territory law, and the police may be able to help you for very serious matters. State laws generally regulate the installation and use of CCTV. Contact the Attorney General’s Department in your state or territory for more information on your state or territory’s surveillance and monitoring laws.
If your property is a strata title unit, you could also enquire as to whether CCTV is contravening a bylaw. You could contact your local council to find out whether the practice may contravene any local laws. Some councils may require planning permission for CCTV.
A business that uses CCTV will likely have obligations under several laws. Generally, any business that uses CCTV will need to notify you before you are recorded that your image may be recorded by CCTV. A business also has obligations to ensure any personal information it records about you is kept secure and is destroyed or de-identified when it is no longer required. State laws generally regulate the installation and use of CCTV. You can contact the Attorney General’s Department in your state or territory for more information on your state or territory’s surveillance and monitoring laws.
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