Common Law Offences
It is an offence at common law which has not been repealed by the modern Forcible Entry legislation, forcibly to enter a property. The offence is committed by a person who takes possession of property in a violent manner, whether the violence consists of actual force applied to another person, threats, breaking open a house or collecting an undue number of persons for the purpose of entry.
Forcible entry is “the unlawful taking of possession of real property by force or threats of force or unlawful entry into or onto another’s property, especially when accompanied by force. It is an offence at common law
It is an offence at common law known as forcible detainer where a person who having wrongfully entered land or buildings detains the same which would render an entry upon them for the purpose of taking possession forcibly.
It is an offence to forcibly without due process of law take possession of any house, land or tenement and holding such possession by forcibly opposing or resisting the execution of any process of law for granting or giving possession thereof.
It does not matter whether the person making such entry had a right to enter.It a defence that the person who enters the land
- is owner,
- he is not the owner, does not interfere with the use and enjoyment of the land or vehicle by the owner and, if requested to leave the land or vehicle by the owner or by a member of the Garda Síochána in uniform, he does so with all reasonable speed and in a peaceable manner, or
- he enters in pursuance of a bona fide claim of right.
It is an offence at common law to forcibly detain property. A person who has wrongfully entered on land or detained such land in a manner of which it would render an entry of them forcible is guilty of forcible detainer.
An 18th century statute makes it a felony to forcibly without due process of law take possession of a house, land or tenement and hold such possession or forcefully oppose or resist the execution of a process law for the giving or granting possession.
Modern Forcible Entry
The scope of the common law offences has been modified by legislation that was introduced in the context of sit-ins and trespass in public buildings in the late 1960s, early 1970s. The Prohibition of Forcible Entry and Occupation Act deals with the taking or retaking of possession of property by force.
The 1971 Act creates a statutory offence of forcible entry. The offence is committed where land/ real property or a vehicle is entered in a forcible manner. Forcibly” means using or threatening to use force in relation to person or property, and for this purpose participation in action or conduct with others in numbers or circumstances calculated to prevent by intimidation the exercise by any person of his rights in relation to any property shall constitute a threat to use force, and “forcible” shall be construed accordingly;
The legislation applies to land and building, houses, structures and vehicles. This includes caravans and mobile homes.
In the context of legislation, the owner means the lawful occupier and every person entitled to the immediate use and enjoyment of the land. In includes any person having an ownership right in the land as the context requires.
“owner”, in relation to land, includes the lawful occupier, every person lawfully entitled to the immediate use and enjoyment of unoccupied land, any person having an estate or interest in land (including a person who remains in occupation of land after the determination of his tenancy therein), the owner of the servient tenement (in relation to an easement or profit á prendre), the owner of an easement or profit á prendre (in relation to the servient tenement) and, in relation to land or a vehicle, any person acting on behalf of the owner, and “ownership” shall be construed accordingly
The Statutory Offence
A person who forcibly enters land or a vehicle is guilty of an offence. The offence is not committed where
- he is the owner of the land or vehicle, or
- if he is not the owner, he does not interfere with the use and enjoyment of the land or vehicle by the owner and, if requested to leave the land or vehicle by the owner or by a member of the Garda Síochána in uniform, he does so with all reasonable speed and in a peaceable manner, or
- he enters in pursuance of a bona fide claim of right.
A person who remains in forceable occupation of land or a vehicle is guilty of an offence unless he is the owner of the land or vehicle or unless he remains there pursuant to a bona fide claim of right.
In this context, forcible occupation of land or a vehicle includes
- the act of locking, obstructing or barring a window, door or other means to exit from the land or vehicle with a view to preventing or resisting a lawful attempt to enter the land or vehicle;
- The act of erecting a physical obstruction to entry to or a means of exit from the land or vehicle with a view to preventing or resisting a lawful attempt to enter the land or vehicle;
- the act of physically resisting a lawful attempt at ejection from the land or vehicle.
If a person encourages or advocates any of the above offences, he is guilty of an offence. Where a statement is made on behalf of a member of a group, every member of the group who consents to the statement is guilty of an offence.
In a prosecution of a person as a member of a group in relation to a statement made on behalf of the group, if in the circumstances the court thinks it reasonable to do so, it may require proof of the person’s membership of the group and making of the statement as adequate consent of the accused in the absence of adequate explanation otherwise.
It is not necessary to prove ownership of land in prosecutions under the act.
Where the offence of forcible entry or forcible remaining in possession is being committed by a person
- who upon being requested either by the owner of the land or vehicle or by a member of An Garda Siochana to leave the land or vehicle, permits entry to the land or vehicle by persons lawfully entitled to enter,
- fails or refuse to do so with reasonable speed and
- damage to property is reasonably and unavoidably caused by the owner or member of An Garda Siochana in the course of taking possession or attempting to eject the defendant,
the court may take the damage into account as if it had been caused by the accused and may have regard to whether or not the defendant has compensated the owner.
A member of An Garda Siochana may arrest a person without a warrant where
- he knows or has reasonable cause for suspecting that the person is committing an offence of forcible entry or forcible remaining in possession of land
- where the owner of the land or vehicle to which the offence relates represents to the member of An Garda Siochana and
- the member reasonably believes that as a result of the continuance of the offence, serious damage to the land or vehicle or serious interference with the lawful rights of the owner in relation to or serious inconvenience to the public or a section of them is or will be caused and
- the member proposing to make the arrest reasonably believes the arrest is necessary to prevent the damage, interference and inconvenience and
- is not reasonably practicable to apply for a warrant.