TAS Adverse possession and Right of carriageway?

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Tim W

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In Tasmania s14b poa
Trespass
I think not.

For one thing, a person on another's land by invitation (such as a tradie invited to come and quote, or to work)
is entitled at common law to rely on the presumption that the person who invited them had the power to do so.
That's a ready made defence to 14B(1).

There being no offence, any dispute is about the use of the easement,
and is therefore a civil matter.
 

Annita

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Tim W

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Perhaps you're not getting it.
The tradies would not automatically be trespassing within the meaning of that section.
Trespass by the tradies is not the issue here.

The tradies can say something like

"But we were invited onto this land
by (the person who led us to believe that they were)
the landholder."


And, if true (which is almost always easily shown)
a statement of that type will typically operate as a complete defence to section 14B.
 

Annita

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Then the person inviting the tradesmen would be guilty of making a false statement.
The tradesmen could be held liable for damage to property if they severed roots of trees on Right of carriageway.
 

Tim W

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Then the person inviting the tradesmen would be guilty of making a false statement.
Nah.
You'd never prove either willingess to deceive, nor recklessness as to truth.
The tradesmen could be held liable for damage to property if they severed roots of trees on Right of carriageway.
Again, Nah.
In strict literal terms, you're more likely looking at vicarious liability of the person purporting to be the landholder.
In real life, for something like that, assuming that mere money can fix the damage,
you'd sue the tradies and the neighbour jointly and severally,
and let dog eat dog first.
 

Tim W

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No, it isn't.
Tortious trespass and criminal trespass are certainly not the same thing.
 

Rob Legat - SBPL

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To add somewhat to what Tim is saying, it appears you’re arguing for criminal trespass. That’s the good, meaty one that will get some action, right? Also the hardest to prove. As with most criminal acts, there is an essential element of intent. The person had to reasonably know they were trespassing, or it’s at best negligent (and you’re straying into tortious trespass which is a civil action).

You see, as a tradesperson with instructions to work on the site there‘s almost no chance you’re going to be able to prove they were intentionally trespassing. In their minds, they thought they were invited in to do the work. And, really, even if you could cobble some credible evidence together, you’re going to have to convince the police to do something about it. Let me tell you, they let bigger transgressions walk away due to lack of interest/too hard/not ‘sexy’ enough/too close to a civil matter and just don’t want to get involved.