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Landlord and Tenant Regulations

What Is an Occupier's Liability?

What Duties Do Occupiers Owe to Visitors?

Occupier's liability refers to the legal responsibility of the person who controls property for injuries done to persons who enter the property. The legal test for occupier's liability may vary depending on which U.S. state the property is in, but it generally considers whether the injury was foreseeable and if the occupier's conduct met acceptable duty of care.

An occupier is anyone with a degree of control over the property, not just an owner, and there can be multiple occupiers at any given time. Landowners and tenants alike are occupiers of the land and thus jointly owe a basic duty of care toward all entrants to the property, which means they are required to act toward others with appropriate care and judgment that a reasonable person in that situation would use. This extends to all types of visitors: an invitee, who is lawfully on the property; a licensee, who has permission to be on the land; and a trespasser, who is an uninvited guest or a person who goes onto the land of another, or causes an object to be placed on the land of another, intentionally and without approval from the landowner.

The greatest duty an occupier owes is to an invitee—someone on the property because they have a right to be there and may provide an economic gain to the owner, such as a customer to a business that is open to the public. Occupiers owe a high level of duty to licensees, such as guests invited to a social event. An occupier must warn them about hidden dangers on the property, such as a pet dog or a rotted wooden step.

The level of care and concern that is owed to anyone who comes on the property depends on how they came to the property and what their status is in relation to the land occupier. In general, landowners and tenants alike must maintain the property in a reasonably safe condition. This means that there are no hidden defects or dangerous items that visitors are not warned about. It also means that if a visitor is injured, then that injury must have been foreseeable to the property occupier for any type of legal responsibility to apply.

The lowest liability, or legal responsibility, for occupiers is owed to trespassers. There is no liability for a trespasser against an occupier for mere negligence, though an occupier still cannot intentionally injure or otherwise engage in gross misconduct against a trespasser and escape any liability. For example, an occupier cannot booby-trap their land in a way that harms or maims trespassers.

The law treats child trespassers differently. If the property contains an attractive nuisance, which is an object, structure, or condition on the land that can be reasonably expected to attract children (such as a swimming pool or a trampoline) then the item must usually be secured with a fence and gate, or an occupier may be potentially liable for a child's injury. Signs, such as "no trespassing," can be helpful but are generally not sufficient to remove liability.

Attractive Nuisance and Landowner Liability

Landowners need to take steps to ensure that attractive nuisances are secure and not easily accessible to children.

What Are Defenses to Claims of Occupier's Liability?

The occupier must take reasonable care to make sure the visitor is reasonably safe in using the premises for the purpose for which the visitor is permitted to be there. An occupier cannot be held responsible for risks that a visitor willingly accepted.

Duty, or responsibility of care, is higher for an injured party that the occupier invited to the property. Thus, occupiers must monitor and inspect the property to identify dangers so that they can be fixed or so that visitors to the property can be properly warned against them.

Occupiers must obey local laws regarding attractive nuisances upon the property. Such attractions must usually be secured with gates, fences, and other security measures.

Occupiers can guard against some liability by posting "no trespassing" and warning signs near the edge of the property and by using fences, gates, and locks. These measures keep the public out and signal that the property is not open for uninvited visitors.

Occupiers have several defenses to negligence claims that injured parties may bring against them. To be liable, the occupier must have had actual knowledge of some specific hidden danger or defect that is dangerous to the public or to anyone who visits the property. If someone is a social guest and is harmed by some hidden danger that was unknown to the occupiers in general, then there would be no liability.

There are limits to this defense. If the danger is something that the occupier should have been aware of had they engaged in basic maintenance on the property, then they would be treated as if they did have actual knowledge of the danger for the purposes of a tort lawsuit.

Depending on the activity, some visitors have to assume some risks if they are warned in advance of dangers that may be on the property. For example, suppose a property is used for fishing and hunting. A visitor to that property, with or without permission of an occupier, who knows that people use the land for hunting and fishing must act in such a way as to avoid being harmed by obvious dangers, such as wild animals on the property.