Implied right of access

Contra Proferentem

Been doing some reading on this and it seems to have a great number of fans among the loony "Freemen-on-the-Land" movement, also known as the sovereign movement, or by their Irish outlet Tir Na Saor who have utilised this common law notion to successfully avoid TV license inspections, etc.

Basically everyone who comes onto your land (i.e: within the curtilage which might be a wall, fence or hedge) has an implied right of access unless the legal occupant specifies otherwise. So this is how we end up getting non-postal junk mail, political canvassers, roaming chuggers, Eircom traveling salesmen, etc.

So, I'm right in assuming that in Ireland, as it is likewise a common law jurisdiction, the situation must be the same. That means that it's possible in theory to legally bar whoever you want from entering your property without prior permission and have some type of redress available if they ignore it.

In reality though, what's likely to happen if you tried to bring someone to Court over it?

Also, what would be the test for applying Section 13(1) of the Criminal Justice (Public Order) Act 1994? In other words, how is "fear" proven?

Contra Proferentem

Come on, the match is over, the Dubs won. Am I right in my analysis of the common law implied right of access or not?

nuac

I don't think there is an implied right of access to private property.

Various statutory authorities and agencies may in certain circumstances be allowed access private property.

You can take a civil action for trespass to stop someone trespassing on your property.

Victor

Contra Proferentem wrote: »

Basically everyone who comes onto your land (i.e: within the curtilage which might be a wall, fence or hedge) has an implied right of access unless the legal occupant specifies otherwise. So this is how we end up getting non-postal junk mail, political canvassers, roaming chuggers, Eircom traveling salesmen, etc.

Only insofar as they can come to your front door and ring the bell / deliver something. They can't wander around to the back garden and prop themselves up on the deck furniture or pick your flowers.

Any restriction you put on the right to access doesn't apply to people who have a statutory right of access, e.g. a garda serving a warrant and possibly quite a few others, e.g. post man has a legal obligation to deliver post, ESB / Bord Gáis may (not sure) have a right to read meter (statutory and contractual). As the TV licence inspector has statutory powers, you can't stop him coming to the door. Even if you did, you might subsequently find yourself at the end of a search warrant or a summons.

The courts are slow to enforce things that they have to supervise, e.g. banning people delivering leaflets to your home, however they will if a complaint has been made and there is subsequent delivering of leaflets.

---

Proving 'fear' would be one person's evidence against anothers, unless some other form of evidence is available.

ResearchWill

Contra Proferentem wrote: »

Been doing some reading on this and it seems to have a great number of fans among the loony "Freemen-on-the-Land" movement, also known as the sovereign movement, or by their Irish outlet Tir Na Saor who have utilised this common law notion to successfully avoid TV license inspections, etc.

Basically everyone who comes onto your land (i.e: within the curtilage which might be a wall, fence or hedge) has an implied right of access unless the legal occupant specifies otherwise. So this is how we end up getting non-postal junk mail, political canvassers, roaming chuggers, Eircom traveling salesmen, etc.

So, I'm right in assuming that in Ireland, as it is likewise a common law jurisdiction, the situation must be the same. That means that it's possible in theory to legally bar whoever you want from entering your property without prior permission and have some type of redress available if they ignore it.

In reality though, what's likely to happen if you tried to bring someone to Court over it?

Also, what would be the test for applying Section 13(1) of the Criminal Justice (Public Order) Act 1994? In other words, how is "fear" proven?

Section 13 fear seems from the act to be either a subjective test or objective, "Trespass on building, etc.

13.—(1) It shall be an offence for a person, without reasonable excuse, to trespass on any building or the curtilage thereof in such a manner as causes or is likely to cause fear in another person."

So a person could give evidence that they felt in fear, or it can be inferred from the facts that the reasonable man would be in fear. Also the act has a defence of reasonable excuse, so person lawfully going about his business would be free to do so.

Giving evidence that you were in fear of the post man delivering a letter would more than likely not be enough.

nuac

btw nobody has any rights at common law or statute to go in around the back of your house or into garage or outbuildings on the basis that he is searching "for the little dogeen, sir"

Milk & Honey

nuac wrote: »

I don't think there is an implied right of access to private property.

Various statutory authorities and agencies may in certain circumstances be allowed access private property.

You can take a civil action for trespass to stop someone trespassing on your property.

I'd agree that there is no implied right of access. The usual analysis I have seen is that there is an implied invitation. By putting a bell and letterbox on your door you are inviting people to come and ring the bell for a variety of reasons, or deposit items in your letterbox. Your neighbour who calls in to borrow your toilet brush is not a trespasser from the minute he steps past your gate, nor is he entering under any right. He is coming in on an implicit invitation. You can withdraw the invitation at any time. Once it is made clear that the implied invitation has been withdrawn the entrant is a trespasser.

Contra Proferentem

Milk & Honey wrote: »

I'd agree that there is no implied right of access. The usual analysis I have seen is that there is an implied invitation. By putting a bell and letterbox on your door you are inviting people to come and ring the bell for a variety of reasons, or deposit items in your letterbox. Your neighbour who calls in to borrow your toilet brush is not a trespasser from the minute he steps past your gate, nor is he entering under any right. He is coming in on an implicit invitation. You can withdraw the invitation at any time. Once it is made clear that the implied invitation has been withdrawn the entrant is a trespasser.

That would be my understanding.

For instance, in the UK those using this put up a notice and notify those who they do no wish to allow on their property that they have withdrawed the implied right of access.

For instance, leafleters and canvassers come onto your land, even through a closed gate so I assume they must have an implied right to access the land unless told otherwise.

Milk & Honey

Contra Proferentem wrote: »

That would be my understanding.

You don't seem to understand at all. I have posted saying there is no right of access, you agree and then try to assert there is a right of access.
There is no right. There is a most an implied invitation.

Contra Proferentem

Milk & Honey wrote: »

You don't seem to understand at all. I have posted saying there is no right of access, you agree and then try to assert there is a right of access.
There is no right. There is a most an implied invitation.

Sorry, I mis-read your post.

So how do you withdraw this "implied invitation", since people still access land when gates are erected? I bring it back to the analogy of political canvassers, one even jumped a locked gate to deliver their literature in one example.

Jo King

Contra Proferentem wrote: »

Sorry, I mis-read your post.

So how do you withdraw this "implied invitation", since people still access land when gates are erected? I bring it back to the analogy of political canvassers, one even jumped a locked gate to deliver their literature in one example.

Order the person off and tell him not to come back.
Alternatively put up a sign NO >>>> and the categories of unwanted callers. Some people put up "No Canvasser"signs.

Contra Proferentem

Jo King wrote: »

Order the person off and tell him not to come back.
Alternatively put up a sign NO >>>> and the categories of unwanted callers. Some people put up "No Canvasser"signs.

So those signs actually have legal affect? That'll do. Time to shift those cateologue distributors and canvassers.

Reloc8

They are of legal effect.

If they don't have the desired effect your realistic options are limited enough.

Basically, the sign is a deterrent.

edanto

That might be worth a try for the fella in the other thread who has the problem with the noisy newspaper delivery. Although maybe not, since in his case he doesn't want to put up any kind of sign outside the letter box.

Maybe he will have changed his mind about that since they have started delivering again at 6am!