11. In this action, will the neighbor prevail?

A defendant built in his backyard a garage that encroached two feet across the property line onto property owned by his neighbor. Thereafter, the defendant sold his property to a friend. The neighbor was unaware, prior to the defendant's sale to his friend, of the encroachment of the garage onto her property. When the neighbor subsequently learned of the encroachment, she sued the defendant for damages for trespass.

No, because the defendant was unaware of the encroachment when the garage was built
No, because the defendant no longer owns or possesses the garage
Yes, because the defendant knew where the garage was located, whether or not he knew where the property line was
Yes, because the friend was unaware of the encroachment when he purchased the property

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To establish a prima facie case for trespass to land, the following elements must be proved: (i) an act of physical invasion of plaintiff's real property by the defendant; (ii) intent by the defendant to bring about a physical invasion of the plaintiff's real property; and (iii) causation. Mistake as to the lawfulness of the entry is no defense as long as the defendant intended the entry upon that particular piece of land. Intent to trespass is not necessary, only intent to enter the land is required. As with most intentional torts, damage is presumed, i.e., actual injury to the land is not an essential element of the cause of action.

C is correct. The neighbor will prevail in her suit against the defendant for trespass because his encroachment on her property was intentional, even if he was not aware of the specific property line. Trespass is an entry onto the land of another, without permission, with intent or by some abnormally dangerous activity. Intent only refers to the intent to enter the property; the defendant need not know that it was the neighbor's land. For an intentional trespass to land, damage is not required, and the trespass does not need to be continuing; the court will award nominal damages based on the trespass alone. Actual damages, if shown, can be awarded as well.

A is incorrect. The defendant did not need to know he was trespassing or encroaching onto the neighbor's property to have the requisite intent. It is sufficient that the physical invasion onto the land happened, even if the defendant was unaware it belonged in part to the neighbor.

B is incorrect. Even though the defendant sold the property, including the garage, to a friend, he is still liable in tort for his intentional trespass onto the neighbor's property. Whether he still owns the garage is thus irrelevant to his liability here.

D is incorrect. This answer reaches the correct answer with the wrong reasoning. The neighbor will prevail, but not because of the friend's knowledge or lack of knowledge regarding the encroachment. The neighbor is suing the defendant, whose actions amount to trespass, as explained above.

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11. In this action, will the neighbor prevail?

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