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There is no trespass law in Scotland, the upside of this is open land access, but the down side seems to be that if someone is on my property and I ask them to leave, (technically) they don't have to. This would be property that forms part of my house, garden, driveway etc.
From my conversation with Police Scotland on 101 the fundamentals seem to be, the person being on the property is not illegal, it would only be by interaction with them (e.g. they become aggressive when challenged) or their actions (e.g. looking through windows) or by circumstances (e.g. they're equipped with tools for burglary) that it's then something the Police can act on. The point I'm making is the situation has to evolve into something else before the Police can act. This is quite straight forward if the Police are present, as not doing as the Police say would develop into some sort of public order offence. Unless, I've misunderstood it, me simply requesting someone leave my property does not legally oblige them to do so.
Can any Scots legal types advise further?
This came about as a guy was using a driveway we share with two neighbours to check over a car (not mine or neighbours) he was picking up for an insurance repair. He hadn't blocked anyone in or caused any damage. He refused to leave saying there's no trespass law in Scotland. I pointed out that my main concern was damage if he then used the driveway to load the car onto the recovery truck (that was parked on the road). He said he would only being checking the car over. That said, it seems he could have used the driveway to load the car and it would have only become an issue if he'd damaged something or blocked someone in. It seems bonkers that I cannot tell someone to leave part of the property that forms my home and they be obliged to do so.
I had thought there was a distinction between land such as farm land and land that was your home, you could request someone to leave the latter, but this doesn't seem to be the case.
What was the car doing on the driveway? Open access doesn't allow you to drive a car just anywhere IIRC
He wasn't trespassing, however the car has no right to be there is my understanding and you can certainly get that removed
IANAL
The main places where access rights are not exercisable are:
· Houses and other residences, and sufficient space around them to give residents reasonable privacy and lack of disturbance this will often be the garden area.
· Other buildings, works and structures, and the areas around them (curtilages).
https://www.scotways.com/faq/law-on-statutory-access-rights/230-where-do-access-rights-not-apply
My understanding ( IANAL) is that within the land where access rights do not apply you as the landowner can ask them to leave and use reasonable force to ensure they do leave.
I am not sure why you wanted this chap to leave tho.
Edit - the police are correct it is not a crime - its a civil matter
I am not sure why you wanted this chap to leave tho.
Care to give me your address, TJ? I could do with a free parking space next time I'm in Edinburgh, your driveway would be ideal.
I am not sure why you wanted this chap to leave tho.
Apart from the fact the guy was working on a random car that he'd put in the OPs driveway?
I think in this case the law in Scotland and England and Wales are much the same. He is trespassing but it's a civil matter so you would have to get a court order to get the police to do anything.
I am not sure why you wanted this chap to leave tho.
After cougar has done can I park there next?
He did not have the right to access "your" land, however it is a civil, not criminal, matter so the Police are unlikely to get involved unless the person trespassing escalates to criminal action.
An old neighbour had a similar occurrence with their front garden being used as a shortcut to get to the main road by some others in the street. Police wouldn't take action. Neighbour reported that they were threatened when confronting the trespassers. Police acted.
EDIT - for reference
I am not sure why you wanted this chap to leave tho.
Mainly because I was leaving and I didn't want him to damage the drive with the recovery truck. The drive is mono-block, ramps are big metal chunks etc.. I think he loaded the car on the road instead as my wife looked a few mins later and couldn't see him. Previously though, someone (perhaps the same guy) used the driveway to load up a car. Occasionally we find van drivers (e.g. Sainsbury's delivery) parked up on their break out there. Again, my main concern is damage
Care to give me your address, TJ? I could do with a free parking space next time I’m in Edinburgh, your driveway would be ideal.
If you don't block in a car then you can use someone's driveway to park your car. You wouldn't be breaking any laws
YOu might have fun parking in my driveway - I don't have one. I live in an attic flat!
I missed the bit about the car not belonging to anyone with rights to use the space. sorry
Given that I would remove the car to the street - you have the right to do that.
f you don’t block in a car then you can use someone’s driveway to park your car. You wouldn’t be breaking any laws
You would be if you parked in either of mine.
The council have painted a solid white box with white diagonal markings across all the driveways in our street.
I commit an offence every time I drive through that box to get in or out of my driveway.
Seems that BruceWee has it:
I think in this case the law in Scotland and England and Wales are much the same. He is trespassing but it’s a civil matter so you would have to get a court order to get the police to do anything.
and Shackleton's link explains it
https://www.thompsons-scotland.co.uk/blog/33-main/2527-are-there-really-no-trespassing-laws-in-scotlandSo, regardless of where I was in the UK, the situation would have been the same....
In regards to the Land Reform (Scotland) Act 2003, I'm pretty this doesn't apply to commercial activity (i.e. the insurance recovery guy on our driveway), unless it's an activity others would do non-commercially. E.g. paid for, guided bike rides are ok as people also ride bikes in general on the land.
In regards to the Land Reform (Scotland) Act 2003, I’m pretty this doesn’t apply to commercial activity (i.e. the insurance recovery guy on our driveway), unless it’s an activity others would do non-commercially. E.g. paid for, guided bike rides are ok as people also ride bikes in general on the land.
Its nothing to do with commercial/non-commercial. it doesn't apply:
- In the curtillage (immediate grounds / garden) of a private residence
- to motorised vehicles
what does the law say if you then decided to park your car on your drive and block the un-invited car in? Theft? Or as its on your drive, you accidentally damage it? It wasnt invited, could they claim on your insurance, or could you just tell them to sod off?
Im not suggesting you start damaging property on your property, just wondering..
what does the law say if you then decided to park your car on your drive and block the un-invited car in
In Scotland, preventing a motor vehicle from accessing the highway is illegal AFAIK.
In Scotland, preventing a motor vehicle from accessing the highway is illegal AFAIK.
I thought that preventing someone leaving their own driveway was the illegal bit, I need to research more.
I thought it was access to the highway because it's the same law that made clamping illegal in Scotland. Might be talking rubbish though...
"I thought it was access to the highway because it’s the same law that made clamping illegal in Scotland. Might be talking rubbish though…"
Clamping was illegal because it was held to be extortion and theft.
"Black v Carmichael (1992) SCCR 709, which held that immobilising a vehicle constitutes extortion and theft. Writing in dismissal of parking contractor Alan Black's appeal to the High Court of Justiciary, the Lord Justice General (Lord Hope) cited case law which said "every man has a right to dispute the demand of his creditor in a court of justice" and himself wrote "it is illegal for vehicles to be held to ransom in the manner described in these charges"
https://en.wikipedia.org/wiki/Wheel_clamp
IUTBAL, memory a bit hazy, but I'm confident you can get a civil action to get someone off your property, and their moveables too.
Not that convenient obvs but different to:
It seems bonkers that I cannot tell someone to leave part of the property that forms my home and they be obliged to do so.
More practically...could you have blocked the car in to make a point?