Dealing with trespassers

By Karen Walsh

The family farm has been in my family for generations, and in all those years, I remember only a few incidents with people trespassing on our land causing a problem.

I am not one to complain over nothing, and generally I do not mind when people accidentally trespass onto our land or indeed when some people do so intentionally.

However, in recent years, the teenagers of our area have started to congregate in an old abandoned field adjoining our lands.

This in itself has not caused any problems, but in order to reach the field, many teenagers have started to cut over part of our farm as a short cut.

In doing so, this often leads to empty cans and litter being strewn on our land. The issue seems slight, and I would usually not mind people on our land, however, the litter has started to cause a bit of a nuisance, and I worry that someone might injure themselves on my farm.

I was wondering if there was any way for me to keep the teenagers off our land, or to protect myself in the case that something does happen while they are on my land?

This is an issue that most landowners face at one point or another.

There can be many problems associated with trespassers, and it is advisable to take measures to prevent people being on your land, even if it does not necessarily bother you.

A great deal of farmers may be unaware that people who trespass on their lands have a certain amount of rights, and you as the landowner owe them a duty of care.

In Irish law, a trespasser is recognised as a person who does not have authority or permission to be on your land.

The duty of care that a landowner owes to a trespasser is twofold.

Firstly the landowner is not to intentionally injure or harm the person, and secondly, the landowner is not to act with reckless disregard for their safety.

The first duty of care is rather standard and self- explanatory. The occupier of the land must not set out to intentionally harm any trespassers. The second duty of care, however, is a bit more complicated. The phrase “reckless disregard” must first be understood.

This means that you must take all care and measures to allow for the safety of any persons entering the land, and to protect and prevent them from any obvious or hidden dangers that might have the potential to harm any persons entering the land.

In effect, you must have regard for any dangers that exist on your lands, and take every effort to protect any potential trespassers from these dangers.

If an incident were to occur with a trespasser being injured on your land, and the case was brought before a court, there are other factors which can be considered.

The court would consider the circumstances and merits of each individual case.

They would look at whether there was a reasonable expectation for the landowner to know the trespasser might be on their lands.

They will then consider the danger itself, and whether it was reasonable to expect the landowner to protect the trespasser from it.

A few other factors will also be evaluated, such as the care the trespasser took for their own safety.

Another factor the court will consider is if you have any visible signs or warnings up. If there are any dangers on your land, it is advisable to have signs which should say something to the effect of “Warning” or “Danger Ahead: Do Not Cross”.

If you have signs up simply stating that trespassers will be prosecuted, that does not constitute a warning to the trespasser in terms of their safety.

These signs may be very effective with regard to keeping trespassers off your land.

In general, it is recommended to have signs up warning trespassers to not enter your lands, and informing them about any potential dangers in the area, in order that they can protect themselves, and to protect yourself from any potential litigation in the event a trespasser suffers injury on your lands.

While having a sign up may not offer a full defence in a court case, it certainly may limit your liability, subject to the evidence provided, and the discretion of the court.

Without having to resort to prosecuting trespassers, as a landowner you can still take steps to protect yourself from any liability that may occur.

We would always advise any landowner to be aware of any hazards or dangers on their lands and take steps to remove such hazards. including warning potential trespassers about such dangers, in any way you can.

It is also advisable, if your land is being trespassed on, that you contact the Gardai as there may be a potential criminal act occurring.

In the event that a trespasser takes court proceedings against you for injury suffered whilst trespassing on your lands, we would recommend you obtain legal advice from a solicitor and notify your insurer.

Karen Walsh.

    Karen Walsh, from a farming background at Grenagh, Co Cork, is a solicitor practicing in Walsh & Partners, Solicitors and Commissioners for Oaths, 17, South Mall, Cork.

    ■ Telephone: 021-4270200

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    While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.

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