Case: Landlord Cannot Bring Action for Trespass – Land Title Association of Mississippi

Bridge Properties of Lafayette, LLC v. 1000 Jefferson, LLC, 366 So. 3d 930 (Miss. Ct. App. 2023). Bridge Properties owned land and a building located at 1002 Jefferson Avenue in Oxford and leased the property to BankFirst. Alger purchased adjacent land at 1000 Jefferson Avenue and commenced construction on its property. Pursuant to permission from a representative of BankFirst, a contractor for Alger went on the property at 1002 Jefferson Avenue for purposes related to the ongoing construction work on the 1000 Jefferson Avenue property. Bridge filed an action against Alger in the Chancery Court of Lafayette County alleging that Alger had committed trespass by entering the 1002 Jefferson Street property. The Chancery Court granted Alger’s motion to dismiss the complaint on the grounds that an out of possession owner does not have standing to bring an action for trespass. On appeal by Bridge, the Court of Appeals, in a decision by Justice Carlton, affirmed. A lease operates as a demise or conveyance of the property for a specific period of time, no right of possession remains in the lessor, and the lessor therefore does not have standing to bring an action for trespass. The Court of Appeals held that Bridge was a “lessor out of possession” and did not have standing to bring the trespass action against Alger.

Note 1: The Court of Appeals made a distinction between a lessor out of possession and a lessor in possession. The editor wishes that the court had elaborated on this distinction. The Chancery Court noted that the lease agreement between Bridge and BankFirst contained restrictions on use and found that this restriction on use did not affect BankFirst’s possession. Without more, a lease of land gives the lessee the right to exclusive possession of the land. But suppose that the lease was for a narrow use, like hunting, and or if the lease provided that the lessor has the right to continue to use the leased property for any uses not inconsistent with the lessee’s permitted use. Would the lessor in this case be a lessor in possession who could bring a trespass action?

Note 2: A lessor out of possession can still bring an action against a trespasser who commits permanent damage to the lessor’s reversionary estate. In this case, the Court of Appeals found that Bridge did not show evidence of permanent damage to its reversionary estate.

Note 3: At the Court of Appeals, Bridge argued that the lease to BankFirst was only for the building located on the land, and not the land surrounding the building, aka the curtilage. The Court of Appeals found that Bridge had not made this argument in the Chancery Court and therefore could not make it for the first time on appeal. The Court of Appeals also referenced testimony on behalf of Bridge that BankFirst had the exclusive right to use parking spaces on the property, which indicated that BankFirst had the right to use land other than the building.

Note 4: In Matter of Will of Bray, Miss. Supreme Court No. 2022-CT-00011-SCT (February 1, 2024), 2024 WL 436589, in addressing a Petition for Writ of Certiorari, the Mississippi Supreme Court wrote that the Court of Appeals in Bridge and other cases had continued to use “colorable interest” as a basis for determining standing after the Supreme Court had abandoned the “colorable interest” standard, and that the “colorable interest” standard should no longer be used. The editor does not think that the Court of Appeals’ use of the “colorable interest” standard in Bridge was necessary to its holding in that case, or that the Supreme Court’s opinion in Bray puts into question the doctrine that an out of possession owner does not have standing to bring an action for trespass. But read Bray before relying on Bridge and draw your own conclusions.