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Trespass law (Merged with other)

  • 30-03-2008 10:26pm
    #1
    ivanthehunter
    Banned (with Prison Access) Posts: 1,284 ✭✭✭


    Trespass!
    What is trespass?

    Does trespass exist as a blanket(cover everywhere) law in Eire?


    Does the presence or lack of a gate effect the validity of the trespass law.
    In other words, if one walks in to a property where no gate exists can this be considered as trespass.


Comments

  • #2
    johnnyskeleton
    Moderators, Entertainment Moderators, Politics Moderators Posts: 14,535 Mod ✭✭✭✭johnnyskeleton


    I take it you mean trespass to land as opposed to trespass to the person (i.e. hitting someone)?

    Trespass to land is to enter onto someone else's property without their permission or other lawful authority.

    If someone entering onto a premises is not there by as of right or invitation (a visitor) nor are they there as a recreational user (i.e. to look at an area of natural beauty) then they are a trespasser in civil law under the occupier's liability act, 1995.

    Trespass is a criminal offence if it is done to cause fear in another person or in circumstances which give rise to a reasonable inference that they were there to commit an offence under the Public Order Act, 1994. Entering a premises without lawful authority intending to commit a serious offence or while there actually committing a serious offence is burglary.

    Gates make no real difference, other than in a criminal case it could be argued that the person did not know he was entering onto someone else's land.


  • #3
    Victor
    Registered Users, Registered Users 2 Posts: 78,490 ✭✭✭✭Victor


    There is also a provision under a recent (c. 2000) Housing Act.

    Lack of a gate is insufficient information. Is there any other boundary or marker?

    Lack of a boundary would make a criminal prosecution difficult. However, it could open the occupier up to public liability issues if the 'trespasser' couldn't be aware they were trespassing.


  • #4
    Tom Young
    Legal Moderators, Society & Culture Moderators Posts: 4,338 Mod ✭✭✭✭Tom Young


    ....and the test for trespass is? Anyone ....

    The Direct Consequences test ...


  • #5
    ivanthehunter
    Banned (with Prison Access) Posts: 1,284 ✭✭✭ivanthehunter


    Victor wrote: »
    There is also a provision under a recent (c. 2000) Housing Act.

    Lack of a gate is insufficient information. Is there any other boundary or marker?

    Lack of a boundary would make a criminal prosecution difficult. However, it could open the occupier up to public liability issues if the 'trespasser' couldn't be aware they were trespassing.
    i am only talking about trespass in general terms so i am unable to give you an specific details.
    what concerns me is the placement of signage which claims "trespassers will be prosecuted",these are to be seen everywhere and i think that they give the impression that this can only happen where such signs exist.
    In terms of boundarys, it is very rare that land is found with out boundary of sorts, i know it exists but as you have shown already it is very difficult to claim trespass and as such it would seem that only a mad man would place a sign in such circumstances.:rolleyes:
    In most if not all circumstances where a gate is found to be missing it is usually missing from a boundary of sorts say a hedge or earthen bank or dry stone wall.

    Johnyskeletion- That seemed like an exemption to the rule, that bit about viewing some place of natural beauty. A recreational user!!!
    Can you elaborate on recreational user in terms of recreations


  • #6
    Tom Young
    Legal Moderators, Society & Culture Moderators Posts: 4,338 Mod ✭✭✭✭Tom Young


    That is defined in the act: Recreational user. Its available on www.irishstatutebook.ie
    "recreational activity" means any recreational activity conducted, whether alone or with others, in the open air (including any sporting activity), scientific research and nature study so conducted, exploring caves and visiting sites and buildings of historical, architectural, traditional, artistic, archaeological or scientific importance;

    "recreational user" means an entrant who, with or without the occupier's permission or at the occupier's implied invitation, is present on premises without a charge (other than a reasonable charge in respect of the cost of providing vehicle parking facilities) being imposed for the purpose of engaging in a recreational activity, including an entrant admitted without charge to a national monument pursuant to section 16 (1) of the National Monuments Act, 1930 , but not including an entrant who is so present and is—

    ( a ) a member of the occupier's family who is ordinarily resident on the premises,

    ( b ) an entrant who is present at the express invitation of the occupier or such a member, or

    ( c ) an entrant who is present with the permission of the occupier or such a member for social reasons connected with the occupier or such a member;


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  • #7
    ivanthehunter
    Banned (with Prison Access) Posts: 1,284 ✭✭✭ivanthehunter


    Tom Young wrote: »
    ....and the test for trespass is? Anyone ....

    The Direct Consequences test ...

    What is this test?

    General: It seems that one might enter land where no signs are present to advise otherwise. ie. "No Trespass" or "private property" or "trespassers prosecuted"
    Even so, if one was approached by the occupier and one was accused of trespass could one plead that one was appreciating an area of natural beauty and avoid all trespass charges??


  • #8
    ivanthehunter
    Banned (with Prison Access) Posts: 1,284 ✭✭✭ivanthehunter


    These signs are found all across Ireland and are some times posted right in ones face at scenic locations as such they often detract form an otherwise prefect view and lead to a feeling of contempt for the land law system.
    Are they of any benefit to the land owner and do they reduce his duty of care or show that he took reasonable steps to keep entrants out..

    What sort of protection does a sign of this sort really provide to a land owner and how does it relate to the trespass laws?
    Can a sign of this nature really keep out recreational users?


  • #9
    ivanthehunter
    Banned (with Prison Access) Posts: 1,284 ✭✭✭ivanthehunter


    Tom Young wrote: »
    ....and the test for trespass is? Anyone ....

    The Direct Consequences test ...
    Q.What is it?


  • #10
    NoQuarter
    Registered Users, Registered Users 2 Posts: 4,632 ✭✭✭NoQuarter


    ivanthehunter wrote: »
    Q.What is it?

    Direct consequences test:


    Re Polemis (1921)


    [1921] 3 KB 560 (AC). The defendants negligently dropped a plank into the hold of the claimants' tanker, breaking some cans of benzine, which caught fire and did substantial damage to the vessel. The Court of Appeal held that since the defendants should have foreseen the damage which was a direct concequence of dropping the plank, they were liable for the whole extent of the damage. This was so even though they would not have been aware of the extent of the damage that was likely to be caused. This decision appeared to settle the law on the relationship between foreseeability and remoteness, but it was strongly disapproved by the Privy Council in TheWagonMound1961.



    -K zone


  • #11
    Pyro202
    Closed Accounts Posts: 11 ✭Pyro202


    Hello, someone, a man living nearbye me drove his tractor through my land, what should i do?? can i sue him??, he drove his tractor through my field to enter his, i know this is illegal


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  • #12
    Our man in Havana
    Closed Accounts Posts: 29,473 ✭✭✭✭Our man in Havana


    See a solicitor.


  • #13
    Pyro202
    Closed Accounts Posts: 11 ✭Pyro202


    thanks for the reply, anyone elsehave a any ideas, has this happened to anyone else


  • #14
    Tom Young
    Legal Moderators, Society & Culture Moderators Posts: 4,338 Mod ✭✭✭✭Tom Young


    You can't get legal advice here.


  • #15
    Pyro202
    Closed Accounts Posts: 11 ✭Pyro202


    did i ask for legal advice you [SNIPPED] head


  • #16
    Victor
    Registered Users, Registered Users 2 Posts: 78,490 ✭✭✭✭Victor


    Pyro202 wrote: »
    Hello, someone, a man living nearbye me drove his tractor through my land, what should i do?? can i sue him??, he drove his tractor through my field to enter his, i know this is illegal
    Is there a right of way on your land?

    Perhaps, before you go for the nuclear option, you should talk to the tractor driver. Explain that you have concerns and mention any damage caused.


  • #17
    dermot_sheehan
    Closed Accounts Posts: 2,062 ✭✭✭dermot_sheehan


    I could tell you about the possible remedies in damages and circuit court injunctions.

    Tell me why though I should possibly place my professional indemnity insurance on the line, viz-a-vie a claim for negligent misstatement to someone who is abusive to a fellow moderator on this board.


  • #18
    nuac
    Registered Users, Registered Users 2 Posts: 6,769 ✭✭✭nuac


    Pyro202

    You should consider apologising to Tom Young. Apart f rom being a moderator he has posted many helpful messages here and knows his law.

    Your neighbour may have a right of way. Most farmers in my experience do not chance their arm in such matters. Talk to your neighbour. Only invoke the law against a neighbour as a last lasr last resort. Believe me on this - 30++ years experience of such matters.


  • #19
    gar_29
    Closed Accounts Posts: 174 ✭✭gar_29


    Tom Young wrote: »
    That is defined in the act: Recreational user. Its available on www.irishstatutebook.ie

    "recreational activity" means any recreational activity conducted, whether alone or with others, in the open air (including any sporting activity), scientific research and nature study so conducted, exploring caves and visiting sites and buildings of historical, architectural, traditional, artistic, archaeological or scientific importance;

    "recreational user" means an entrant who, with or without the occupier's permission or at the occupier's implied invitation, is present on premises without a charge (other than a reasonable charge in respect of the cost of providing vehicle parking facilities) being imposed for the purpose of engaging in a recreational activity, including an entrant admitted without charge to a national monument pursuant to section 16 (1) of the National Monuments Act, 1930 , but not including an entrant who is so present and is—

    so how come i have to pay to get into newgrange? does that mean that i can just walk in? i know you pay for the interpretive centre, but you also pay to access the monument itself....

    just wondering!!! :)


  • #20
    Brigante
    Registered Users Posts: 44 ✭Brigante


    Hey Im being charged with trespassing at a Dart station, an incident Im pretty sure never happened.. Anyone know what could happen me?? :confused: I will not be paying a fine for something I didnt do


  • #21
    Zambia
    Closed Accounts Posts: 7,333 ✭✭✭Zambia


    Your pretty sure?


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  • #22
    MagicSean
    Closed Accounts Posts: 9,897 ✭✭✭MagicSean


    So where did they get your name?


  • #23
    Brigante
    Registered Users Posts: 44 ✭Brigante


    Zambia wrote: »
    Your pretty sure?

    No just found out Im definatley sure!! It was a night there was a beach rave in Howth. I got the dart to howth.. left my schoolbag on the train which for some reason had my passport and all my drink in it..now ive heard that afew people I know got summonsed to court for that night aswell, most just ripped it up


  • #24
    Our man in Havana
    Closed Accounts Posts: 29,473 ✭✭✭✭Our man in Havana


    most just ripped it up
    Ah sure, that will make it all go away.


  • #25
    ViP3r
    Registered Users Posts: 142 ✭✭ViP3r


    Pyro202 wrote: »
    Hello, someone, a man living nearbye me drove his tractor through my land, what should i do?? can i sue him??, he drove his tractor through my field to enter his, i know this is illegal

    Ask him to stop?:)


  • #26
    Squiggle
    Registered Users, Registered Users 2 Posts: 1,256 ✭✭✭Squiggle


    johnnyskeleton wrote: »
    I take it you mean trespass to land as opposed to trespass to the person (i.e. hitting someone)?

    Trespass to land is to enter onto someone else's property without their permission or other lawful authority.

    If someone entering onto a premises is not there by as of right or invitation (a visitor) nor are they there as a recreational user (i.e. to look at an area of natural beauty) then they are a trespasser in civil law under the occupier's liability act, 1995.

    Trespass is a criminal offence if it is done to cause fear in another person or in circumstances which give rise to a reasonable inference that they were there to commit an offence under the Public Order Act, 1994. Entering a premises without lawful authority intending to commit a serious offence or while there actually committing a serious offence is burglary.

    Gates make no real difference, other than in a criminal case it could be argued that the person did not know he was entering onto someone else's land.

    From the Act:

    “visitor” means—


    (a) an entrant, other than a recreational user, who is present on premises at the invitation, or with the permission, of the occupier or any other entrant specified in paragraph (a), (b) or (c) of the definition of “recreational user”,


    (b) an entrant, other than a recreational user, who is present on premises by virtue of an express or implied term in a contract, and


    (c) an entrant as of right,

    while he or she is so present, as the case may be, for the purpose for which he or she is invited or permitted to be there, for the purpose of the performance of the contract or for the purpose of the exercise of the right, and includes any such entrant whose presence on premises has become unlawful after entry thereon and who is taking reasonable steps to leave.

    Does the bold text not mean that a bank has every right to call to someone's house regarding a mortgage arrears situation, even if the bank are told by the borrower that they only want written correspondence?


  • #27
    NoQuarter
    Registered Users, Registered Users 2 Posts: 4,632 ✭✭✭NoQuarter


    Squiggle wrote: »

    Does the bold text not mean that a bank has every right to call to someone's house regarding a mortgage arrears situation, even if the bank are told by the borrower that they only want written correspondence?

    If somebody from the bank hasnt come around to the property and injured themselves on the property then your question is not relevant.

    That provision is about the liability of the occupier of land for the injuries of an entrant.


  • #28
    nuac
    Registered Users, Registered Users 2 Posts: 6,769 ✭✭✭nuac


    Pyro,

    Tell you what, go to the guy with the tractor and address him in the same terms as you did our esteemed TY above.

    Let us know how you got on.


  • #29
    biddybops
    Closed Accounts Posts: 91 ✭✭biddybops


    Squiggle wrote: »
    johnnyskeleton wrote: »
    I take it you mean trespass to land as opposed to trespass to the person (i.e. hitting someone)?

    Trespass to land is to enter onto someone else's property without their permission or other lawful authority.

    If someone entering onto a premises is not there by as of right or invitation (a visitor) nor are they there as a recreational user (i.e. to look at an area of natural beauty) then they are a trespasser in civil law under the occupier's liability act, 1995.

    Trespass is a criminal offence if it is done to cause fear in another person or in circumstances which give rise to a reasonable inference that they were there to commit an offence under the Public Order Act, 1994. Entering a premises without lawful authority intending to commit a serious offence or while there actually committing a serious offence is burglary.

    Gates make no real difference, other than in a criminal case it could be argued that the person did not know he was entering onto someone else's land.

    From the Act:

    “visitor” means—


    (a) an entrant, other than a recreational user, who is present on premises at the invitation, or with the permission, of the occupier or any other entrant specified in paragraph (a), (b) or (c) of the definition of “recreational user”,


    (b) an entrant, other than a recreational user, who is present on premises by virtue of an express or implied term in a contract, and


    (c) an entrant as of right,

    while he or she is so present, as the case may be, for the purpose for which he or she is invited or permitted to be there, for the purpose of the performance of the contract or for the purpose of the exercise of the right, and includes any such entrant whose presence on premises has become unlawful after entry thereon and who is taking reasonable steps to leave.

    Does the bold text not mean that a bank has every right to call to someone's house regarding a mortgage arrears situation, even if the bank are told by the borrower that they only want written correspondence?

    If a person( only a tenant) adjoining your property breaks into a vacant house to erect a water supply to their own house and floods the house.
    Who is liable the tenant or the owner?


  • #30
    loremolis
    Registered Users Posts: 944 ✭✭✭loremolis


    nuac wrote: »
    Pyro,

    Tell you what, go to the guy with the tractor and address him in the same terms as you did our esteemed TY above.

    Let us know how you got on.

    That's 3 years ago.
    I'd hope that's sorted by now.


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  • #31
    Squiggle
    Registered Users, Registered Users 2 Posts: 1,256 ✭✭✭Squiggle


    NoQuarter wrote: »
    If somebody from the bank hasnt come around to the property and injured themselves on the property then your question is not relevant.

    That provision is about the liability of the occupier of land for the injuries of an entrant.

    Thanks - I had done a search on here about trespassing and arrived at this thread ! Does a bank, or indeed any creditor, have a right to call to a debtors property if the debtor has made it clear to the creditor that they do not have the debtor's permission to do so.


  • #32
    Jon_d
    Registered Users Posts: 18 ✭Jon_d


    I heard that if someone trespasses on to your property (thief scumbag etc) that once they're on your property you have legal right to take your own action!


  • #33
    Procrastastudy
    Closed Accounts Posts: 6,224 ✭✭✭Procrastastudy


    Jon_d wrote: »
    I heard that if someone trespasses on to your property (thief scumbag etc) that once they're on your property you have legal right to take your own action!

    Such as?

    You're perfectly entitled to shout "Ahoy there young rapscallion leave my land at once"

    Shooting them in the face would be different.


  • #34
    NoQuarter
    Registered Users, Registered Users 2 Posts: 4,632 ✭✭✭NoQuarter


    Procrastastudy wrote: »
    Shooting them in the face would be different.

    Unless they were ugly.


  • #35
    Jon_d
    Registered Users Posts: 18 ✭Jon_d


    Procrastastudy wrote: »
    Such as?

    You're perfectly entitled to shout "Ahoy there young rapscallion leave my land at once"

    Shooting them in the face would be different.

    kicking this **** out of them or shooting them in the patella (knee cap) or ankle!


  • #36
    Pat Mustard
    Registered Users, Registered Users 2 Posts: 9,554 ✭✭✭Pat Mustard


    Jon_d wrote: »
    kicking this **** out of them or shooting them in the patella (knee cap) or ankle!

    Nope. Illegal for now. But when Mick the Bull Daly is you get elected, he'll you can pass that law, good and proper like.

    https://www.youtube.com/watch?v=UCt787qneQw


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  • #37
    Strawberry Fields
    Closed Accounts Posts: 611 ✭✭✭Strawberry Fields


    Jon_d wrote: »
    kicking this **** out of them or shooting them in the patella (knee cap) or ankle!

    If they were merely recreationally passing through your lands to admire the scenery or the architecture of your buildings they could in fact sue you for taking such a course of action in which case it would not be advised.

    If Fat Freddy popped in to make you pay up it may be different if you were acting in self defence.


  • #38
    Jon_d
    Registered Users Posts: 18 ✭Jon_d


    yeah what i mean as in if someone come to act the Bo&&ocks


  • #39
    NoQuarter
    Registered Users, Registered Users 2 Posts: 4,632 ✭✭✭NoQuarter


    Jon_d wrote: »
    yeah what i mean as in if someone come to act the Bo&&ocks

    The law is that anything you do has to be reasonable. It will be a jury who decides what reasonable is. So if someone is on your land and calls ya an eejit and ya box their head in, good luck to ya, youll need it.

    But if someone is on your land with a knife, you have your family upstairs and he is trying to break into the house or something like that, and you shoot them, you may be ok. But its a matter for a jury.

    The law simply says any force you use must be "reasonable". Thats as far as it goes. That is the law on self defence by the way, which is the only time you can attack/hit/shoot/whatever someone. If someone is pulling up your plant pots and you smack them, you may be in trouble.


  • #40
    Jon_d
    Registered Users Posts: 18 ✭Jon_d


    that's grand, sound


  • #41
    Pat Mustard
    Registered Users, Registered Users 2 Posts: 9,554 ✭✭✭Pat Mustard


    NoQuarter wrote: »
    The law is that anything you do has to be reasonable. It will be a jury who decides what reasonable is. So if someone is on your land and calls ya an eejit and ya box their head in, good luck to ya, youll need it.

    But if someone is on your land with a knife, you have your family upstairs and he is trying to break into the house or something like that, and you shoot them, you may be ok. But its a matter for a jury.

    The law simply says any force you use must be "reasonable". Thats as far as it goes. That is the law on self defence by the way, which is the only time you can attack/hit/shoot/whatever someone. If someone is pulling up your plant pots and you smack them, you may be in trouble.

    Could you take a look at my post from the self-defence thread (now reposted here) and give me your opinion?
    What is your opinion on this from the Criminal Law (Defence and the Dwelling) Act 2011?:

    Quote:
    s.2(4) It is immaterial whether a belief is justified or not if it is honestly held but in considering whether the person using the force honestly held the belief, the court or the jury, as the case may be, shall have regard to the presence or absence of reasonable grounds for the person so believing and all other relevant circumstances.

    Given a home invasion situation, if a householder (fearing for his life) kills an intruder with an honestly held but unreasonable belief - but with certain reasonable grounds and certain excusing circumstances.

    It looks like the legislation is framed to provide a full defence to a homicide charge in that particular situation. Is that correct?


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  • #42
    NoQuarter
    Registered Users, Registered Users 2 Posts: 4,632 ✭✭✭NoQuarter


    Yes, the legislation does provide for that.

    I dont understand how the belief would be "unreasonable" and then you say there are certain reasonable grounds and certain circumstances. If there are certain reasonable grounds, it may well add up to a reasonable belief. So there is a bit of a contradiction there but I would have to hear the full facts to first.

    Either way, its for a jury to decide. All I know is that if I was on a jury and the case before me was a burglar or whatever breaking on to somones property, where the burglar was armed of dangerous, I could and would look past the law and use my position to make sure there is precedent for people to be acquitted in such circumstances. Its important not to give criminals legal protection if they enter someones home. That said, its not reasonable to shoot someone for taking a short-cut through your garden etc etc

    Also, check out DPP v. Nally which was an important case in paving the way for this legislation: http://www.irishtimes.com/newspaper/special/2006/nally_judgment/index.pdf


  • #43
    Kevin3
    Registered Users, Registered Users 2 Posts: 167 ✭✭Kevin3


    Sorry to dig up an old thread but I didn't think there was much point creating a new one.

    Trespass on land is a civil offence. Does Section 18 of the Non-Fatal Offences Against the Person Act 1997 give a person power to use reasonable force to remove a person trespassing on their land (e.g. farmer removing someone they told to leave their land)? Does the same section allow Gardaí to assist in the removal of a trespasser on land?
    18.—(1) The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence—

    (a) to protect himself or herself or a member of the family of that person or another from injury, assault or detention caused by a criminal act; or

    (b) to protect himself or herself or (with the authority of that other) another from trespass to the person; or

    (c) to protect his or her property from appropriation, destruction or damage caused by a criminal act or from trespass or infringement; or

    (d) to protect property belonging to another from appropriation, destruction or damage caused by a criminal act or (with the authority of that other) from trespass or infringement; or

    (e) to prevent crime or a breach of the peace.

    (2) “use of force” in subsection (1) is defined and extended by section 20 .

    (3) For the purposes of this section an act is ‘criminal’ notwithstanding that the person doing the act—

    (a) if charged with an offence in respect of it, would be acquitted on the ground that—

    (i) he or she acted under duress,

    (ii) his or her act was involuntary,

    (iii) he or she was in a state of intoxication, or

    (iv) he or she was insane so as not to be responsible according to law for the act,

    or

    (b) was a person to whom section 52 (1) of the Children Act 2001 applied.

    (4) The references in subsection (1) to protecting a person and property from anything include protecting the person or property from its continuing; and the reference to preventing crime or a breach of the peace shall be similarly construed.

    (5) For the purposes of this section the question whether the act against which force is used is of a kind mentioned in any of the paragraphs (a) to (e) of subsection (1) shall be determined according to the circumstances as the person using the force believes them to be.

    (6) Notwithstanding subsection (1), a person who believes circumstances to exist which would justify or excuse the use of force under that subsection has no defence if he or she knows that the force is used against a member of the Garda Síochána acting in the course of the member's duty or a person so assisting such member, unless he or she believes the force to be immediately necessary to prevent harm to himself or herself or another.

    (7) The defence provided by this section does not apply to a person who causes conduct or a state of affairs with a view to using force to resist or terminate it:

    But the defence may apply although the occasion for the use of force arises only because the person does something he or she may lawfully do, knowing that such an occasion will arise.

    (8) Property shall be treated for the purposes of subsection (1) (c) and (d) as belonging to any person—

    (a) having the custody or control of it;

    (b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or

    (c) having a charge on it;

    and where property is subject to a trust, the persons to whom it belongs shall be treated as including any person having a right to enforce the trust.

    Property of a corporation sole shall be treated for the purposes of the aforesaid provisions as belonging to the corporation notwithstanding a vacancy in the corporation.

    (9) In subsection (3) ‘intoxication’ means being under the intoxicating influence of any alcoholic drink, drug, solvent or any other substance or combination of substances.


  • #44
    The Castle King
    Registered Users Posts: 12 ✭The Castle King


    Is it an offence to enter someones property without the owners consent in persuit of an assailant who had just attacked my vehicle knowing that the assailant was on the grounds of the property?


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