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Law of Torts.doc
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2) Defences to the Intentional Interference with Land

There are three important defences to trespass to land: consent, necessity, and legal authorization.

a) Consent

There is no liability in trespass to land where the possessor has consented to another entering his land. Consent to enter property is commonly known as a licence. A licence may be express or implied, contractual or gratuitous, and given to an individual, a group, or the world. When a licence is given for a particular purpose, an abuse of that purpose may terminate the licence. For example, the licence of a housesitter is likely terminated if the premises are used as a crack house or a gambling establishment.

Gratuitous licences are revocable at will but there is some doubt surrounding the revocability of a contractual licence for a particular purpose and for a limited duration. The situation most commonly arises in respect of contractual licences to see theatrical performances, movies, and sporting events. The conventional view is that, in the absence of misconduct or any breach of management rules by the licensee, his licence is irrevocable. [Note 111: Davidson v. Toronto Blue Jays Baseball Ltd. (1999), 170 D.L.R. (4th) 559 (Ont. Gen. Div.).] Imagine, for example, that a contractual licence to see a movie is revoked by the owner in breach of the contract. The licensee refuses to leave the theatre and reasonable force is used to eject him. The owner will be liable in battery on the grounds that the licence could not be revoked, the licensee never became a trespasser, and no privilege to use reasonable force to remove him arose.

A few provinces have legislation that empowers a court to issue a judicial licence in narrow circumstances. It arises where a house is built so close to the boundary line that its owner cannot carry out repairs without entering the adjoining property. If the adjoining owner refuses to give a licence to enter his property, an application may be made for an order permitting entry for the purpose of effecting the repairs. [Note 112: See, for example, Property Law Act, R.S.B.C. 1996, c. 377, s. 34.]

b) Necessity

A trespass to land may be justified on the grounds that a situation of danger and emergency arose and it was necessary to commit a trespass to land to prevent harm to the public, the trespasser, the possessor of the land, or a third party which significantly outweighed the damage or loss caused to the innocent plaintiff. [Note 113: Klar, above note 8 at 122-23, lists these four situations. ] Illustrations of each situation are, respectively, the destruction of premises to prevent the spread of fire to an urban area (public benefit), trespassing on the land of another to prevent a spread of fire onto the trespasser's own land (trespasser's benefit), trespassing on land to extinguish a fire on the possessor's land to prevent more extensive damage to the possessor's land (possessor's benefit), and trespassing on land to save the life of a stranger drowning in the possessor's swimming pool (third party's benefit). The wrongful acts must be prompted by imminent peril and must be necessary in the light of the advantage to be gained and the absence of other available options.

There is, however, no consensus on whether necessity is a complete or an incomplete defence. A complete defence negates all liability and allocates the loss to the innocent plaintiff. An incomplete defence excuses the wrongfulness of the act, disallows any self-help remedy to eject the trespasser, and prevents an award of nominal or punitive damages, but it also requires the defendant to pay compensation for any damage caused to the plaintiff. It is unlikely that either view will be suitable for all situations and the extent of protection is likely to be tailored to the particular circumstances of each case.

c) Legal Authorization

There are a wide range of circumstances where entry onto land is statutorily authorized. This arises most frequently in respect of the administration of criminal justice. Entry for the purposes of executing a warrant for the arrest of a person or a warrant to search premises are two examples where trespass to land will be protected by legal authorization. There is also a range of other legislation which permits public officials to enter premises for a variety of purposes, including determining land valuation for taxation purposes and checking compliance with health regulations and building codes.

A special protection is provided to the possessor where a person who enters onto property with legal authority abuses or exceeds his authority. The doctrine of trespass ab initio applies and the entry is deemed to be wrongful from the moment of entry. The abuse of a contractual licence may terminate it from the point at which the abuse occurs but the doctrine of trespass ab initio does not apply.

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