Consent Privileges - Property

The plaintiff’s consent to the defendant entering his property is a defense to a suit of trespass to land. However, an actionable suit will arise if the defendant acts beyond the scope of the consent the plaintiff grants. For example:

Pratt invited Dan to a party at Pratt’s house. At the end of the party Dan refuses to leave the house. Once Dan refuses to leave Pratt’s house, he has acted beyond the scope of the consent given to him and he can be held liable for a trespass.

Also, if the defendant obtains consent through fraud, duress or through a mistake, the consent is void and he can be held liable.

There are also instances where the defendant has the right, or privilege, to enter the plaintiff’s land in order to reclaim chattels that are on the plaintiff’s property.

The privilege will depend on who is to blame for the property being on the plaintiff’s land in the first place.

If the defendant’s chattels are on the plaintiff’s land because the plaintiff tortiously dispossessed the defendant of the chattels, then the defendant has a complete privilege to enter the plaintiff’s land. This generally means that the defendant will not be held liable for any damage he causes to the plaintiff’s land while he is recovering his chattels.

However, even though the privilege is complete, the defendant must still abide by certain guidelines when entering the plaintiff’s land:

1. The defendant must first demand permission to enter plaintiff’s land in order to recover his chattels.
2. The defendant can only enter the plaintiff’s land at a reasonable time and in a reasonable manner. See Rogers v. Kabakoff, 81 Cal.App.2d 487 (1947).
3. While the defendant’s privilege to enter the plaintiff’s property is complete, which means that the defendant will not be held liable for any damage he causes on the plaintiff’s land, the defendant can be held liable for damage caused to buildings that do not contain his chattels. Liability will attach, even if the defendant makes a reasonable mistake as to where his chattels are being kept.

Please note that when the plaintiff has dispossessed the defendant of his chattels, the defendant may use reasonable, non-deadly force on the plaintiff if it is necessary to recover the chattels.

If it is the defendant’s fault that his chattels are on the plaintiff’s land (this includes the defendant’s negligence), then the defendant has no privilege to enter the plaintiff’s land at all.

If the chattels are on the plaintiff’s land through no fault of either party, then the defendant has a privilege to enter the plaintiff’s land but the privilege is not complete.

In these situations, the defendant is liable for any damage he causes while on the plaintiff’s land. 

However, he is not liable for the damage caused by the chattels entering the land. For example:

A tree on Dean’s property is struck by lightning and falls over onto Peter’s property and crashes through the roof of Peter’s house. Dean is privileged to enter Peter’s land to retrieve his tree and he is not liable for the damage the tree caused when it fell. However, Dean will be liable for any damage he causes in the process of retrieving his tree. 

This same limited privilege exists where the defendant’s chattels are on the plaintiff’s property through the fault of a third person.

Of course, a person also has the right to recover her own land that has been illegally possessed by another person. However, this may not be done in a manner that is likely to lead to a violent confrontation or otherwise constitute a “breach of peace.” See Dalusio v. Boone, 71 Cal.2d 484 (1969).

In addition, the defendant has a complete privilege to enter the plaintiff’s land if it is necessary, or if it reasonably appears to be necessary, to avoid a public disaster. See South Dakota Department of Health v. Heim, 357 N.W.2d 522 (S.D. 1984).

Again, this is a complete privilege. Thus, the defendant is not liable for any damage he causes on the plaintiff’s land, including damage to any buildings, as long as the defendant acts within the privilege. 

Furthermore, in order to avert a public disaster, the defendant is privileged to use any force necessary, including deadly force, against the landowner if it is necessary to do so.

Similarly, the defendant is privileged to enter the plaintiff’s land if it is necessary, or appears to be necessary, to protect somebody from death or serious bodily harm, or to protect real and personal property from destruction or injury. However, this is not a complete privilege. Thus, the defendant is liable for any damage he causes. Also, the defendant is entitled to use force, although not deadly force, against the landowner, if necessary in these circumstances. See Vincent  v. Lake Erie Transportation Co., 124 N.W. 221 (Minn. 1910). See also Ploof v. Putnam, 71 A. 188 (Vt. 1908).

Please note that, because the defendant has the right to enter the plaintiff’s land under these circumstances, the plaintiff has no right to keep the defendant off of his land. Thus, the plaintiff will be liable for any force he uses against the defendant in trying to keep the defendant off of his land.

A pedestrian on a public thoroughfare that is, or reasonably appears to be, obstructed may enter the plaintiff’s land in order to bypass the obstruction. This is considered a “matter of public right”. However, this is also not a complete privilege. Therefore, the pedestrian will be held liable for any damage he causes while on the plaintiff’s property. However, please note that there is no privilege if the obstruction is caused by the pedestrian himself. 

Finally, the defendant has a complete privilege to enter the plaintiff’s land in order to eliminate a "private nuisance". However, three guidelines must be adhered to:

1. The defendant must be the owner of, or in possession of, the property affected by the nuisance.
2. The defendant must demand that the plaintiff stop the "nuisance inducing behavior" before he enters the plaintiff’s land.
3. The defendant can only enter the plaintiff’s land at a reasonable time and he may only use reasonable force to bring about the end of the nuisance. However, in this case, the defendant may not use any kind of force against the landowner himself.