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Trespass in Scotland - law or myth?

This question regularly arises and most people are surprised to learn that there is a law of trespass in Scotland.

Trespass is the temporary intrusion into land (or the airspace above land) which have not been authorised by the owner of the land.  Trespass can be committed by persons, animals or things and common examples include:

  • taking a short-cut through someone else’s garden;
  • travellers setting up camp on ground which they do not own; and
  • cranes used in construction projects which over sail neighbouring land.

Trespass is generally dealt with by first asking the trespasser not to trespass again or, in the case of those who have set up camp, by asking them to move.  Should that not work, the owner may apply to the court for an order preventing the trespasser from continuing with the trespass or for removal.

Although trespass is usually treated as a civil matter, there are specific statutes which make trespass a crime.  For example the Trespass (Scotland) Act 1865 makes it an offence to lodge or encamp on private property.

Although the owner of land is generally entitled to prevent encroachments, there are some exceptions to that.  The “right to roam” legislation gives members of the public to cross land for recreational purposes provided they exercise the right reasonably and provided it does not adversely affect privacy of the landowner.    Another example is The Civil Aviation Act 1982 which allows aeroplanes to fly through the airspace above land.

For further information, please contact Tom Hempleman.

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