McPhail v Persons Unknown

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Citation: McPhail v Persons Unknown (1973) Ch 447

This information can be found in the Textbook: Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 143-6 [2.60].


Background facts

  • The Defendants [Persons Unknown), who were homeless, broke into unoccupied premises owned by the Plaintiff (McPhail] and made their home there.
  • The Defendants refused to give their names and refused to leave the property.
  • As squatters, whose presence was not acquiesced by the owner, they were trespassers and guilty of forcible entry.
  • The Plaintiff commenced proceedings to take possession of his land.


  • The Defendants asked the judge to suspend the order of possession so they can have more time to find a new home.

Legal issues


  • The squatters are trespassers who have no title.
    • Furthermore, this isn't a case where the Plaintiff showed 'acquiescence' to their trespassing (ie, knew of their trespassing and did nothing about it). Rather, as soon as he found out, he acted.
  • In a case of trespassers, the owner of the land's remedies are self help or action through the court.
    • If he chooses, self help, he can immediately eject them using reasonable force.
    • If he chooses to come to the court, the court cannot put him in a worse position than the one he was in before bringing the claim. Therefore, the court is also bound to give him an immediate order, and has no discretion to suspend the order.
    • This is because of the principle that the owner could not be placed by the courts in a worse position than before bringing his claim.
  • If these were tenants (rather than trespassers) who have overstayed their lease etc, things would be different.
    • That would mean they were there legally originally, and not mere trespassers.
    • In such a case, the owner cannot use self help and thus the court is allowed to suspend the orders.
  • However, the Defendants were trespassers and the Plaintiff wins.


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