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Trespass Act: How to legally trespass someone from your property

Key Takeaway

In New Zealand, an occupier of property can issue a trespass notice, either orally or in writing, to prohibit an individual from entering or remaining on their land for up to two years. Re-entering or remaining on the property after receiving a valid trespass notice constitutes a legal offence under the Trespass Act 1980.

Understanding Trespass in New Zealand

Trespass, in the context of New Zealand law, generally refers to an unauthorised entry or presence on another person's property. The primary legislation governing trespass is the Trespass Act 1980. This Act outlines who can issue a trespass notice and the legal consequences of breaching such a notice.

Who is an Occupier?

Only an "occupier" of a property has the legal authority to issue a trespass notice. An occupier is defined as any person in lawful occupation of any place [Source: Trespass Act 1980, s 5]. This includes owners, tenants, or anyone else with a legal right to possess and control the property.

What Constitutes Trespass?

A person commits an offence of trespass if they:

  • Enter or remain on any place without right and without the consent of the occupier; AND
  • Have been warned to leave that place by the occupier or a person acting under the occupier's authority; AND
  • Fail to leave that place after being warned [Source: Trespass Act 1980, s 3(1)(a)].

Additionally, it is an offence to enter or remain on any place in contravention of a valid trespass notice [Source: Trespass Act 1980, s 3(1)(b)]. A trespass notice is a formal prohibition against entering or remaining on a specific property.

Issuing a Trespass Notice

An occupier has the power to issue a trespass notice to prohibit any person from entering or remaining on their property [Source: Trespass Act 1980, s 4(1)].

Form of the Notice

A trespass notice can be given either orally or in writing [Source: Trespass Act 1980, s 4(1)]. While an oral notice is legally valid, a written notice can provide clearer evidence should there be a dispute or further legal action.

Key Information for a Trespass Notice

To be effective, a trespass notice should clearly specify:

  • The identity of the person being prohibited.
  • The specific property or area they are prohibited from entering or remaining on.
  • A clear statement that they are prohibited from entering or remaining on the property.

Duration of a Trespass Notice

A trespass notice remains in force for a period specified in the notice, but for no longer than two years from the date it is given [Source: Trespass Act 1980, s 4(2)].

Serving the Notice

For a notice to be effective, it must be given directly to the person it applies to. This means they must be made aware of the prohibition. If the notice is written, it should be handed to them or served in a way that ensures they receive it.

Consequences of Breaching a Trespass Notice

If a person enters or remains on a property in contravention of a valid trespass notice, they commit an offence [Source: Trespass Act 1980, s 3(1)(b)]. Upon conviction, this offence carries potential penalties, including a fine not exceeding $1,000 or imprisonment for a term not exceeding 3 months [Source: Trespass Act 1980, s 8].

Enforcement of Trespass

If a person commits an offence under the Trespass Act 1980, a constable may arrest that person without a warrant [Source: Trespass Act 1980, s 7(1)]. An occupier who has issued a trespass notice, or a person acting under their authority, may also warn a person to leave the property. If the person fails to leave after such a warning, they commit an offence [Source: Trespass Act 1980, s 3(1)(a)].

Defences to Trespass

It is a defence to a charge of trespass if the person charged proves that they had a lawful excuse or a claim of right to be on the place [Source: Trespass Act 1980, s 9]. A claim of right means an honest belief that they had a legal right to be there, even if that belief is mistaken, provided it is based on reasonable grounds.

When to Seek Independent Legal Advice

Property occupiers or individuals involved in trespass disputes are encouraged to seek independent legal advice. Legal professionals, including those at Community Law Centres, can provide guidance tailored to specific circumstances, ensuring actions comply with legal requirements and rights are protected. This information does not constitute legal advice.

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