Trespass Damages Awarded

Trespass Damages Awarded | Disinherited Estate Litigation

In Volovsek v Donaldson 2010 BCSC 25 the trustee of the deceased’s estate brought a counterclaim for trespass damages against a party who claimed to have been in a marriage like relationship with the deceased, but who had been ordered out of the condo by the trustee.

The counterclaim for trespass was allowed as the purported spouse was not in lawful possession of the condominium after she had been lawfully asked to vacate by the trustee.

The court held that the trustee had authority to maintain the claim for damages once her license to occupy the premises ceased. The estate was entitled to damages for trespass based on the actual loss suffered, being carrying costs and lost interest on the sale proceeds of a lost sale.

The Law of Trespass

Fridman’s The Law of Torts in Canada ( 2010) at para. 41:

“Trespass is a wrong against the possession of land. The essence of the action is an unjustifiable interference with possession.”

There are some situations in which ownership may be the basis for maintaining an action. Townsview Properties LTD vs. son construction and equipment company, LTD (1974) 56 DLR ( 3d) 330:

“The owner has no right to sue in trespass if any other person was lawfully in possession of the land at the time of the trespass, since a mere right of property without possession is not sufficient to support the action. If, however, land is vacant, the owner has sufficient possession to sue in trespass.

Title may therefore be enough on some occasions for such an action. In other situations, bear possession is both necessary and sufficient. A plaintiff who can show neither title to land or actual possession that suffices to give him or her a right of action will not be able to sue.”

The court referred to Morgan v Pengelly Estate 2011 BCSC 1114, in which the court refused to order occupational rent because the claimant had no interest in the property, and instead awarded damages for trespass based on actual loss suffered.

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