The occupier of property owes a duty of care to people who visit or trespass on his land, and can be held liable in court if he breaches this. The duty of care is an obligation to take care to ensure persons’ safety, but specifically relates to liability that may arise from accidents caused by dangers due to the state of the premises or to things done or omitted to be done on them. The Occupiers’ Liability Act 1957 regulates the occupiers’ liability towards visitors, and the liability towards trespassers is provided under the Occupiers’ Liability Act 1984.
Neither the Occupiers Liability Act 1957 nor the Occupiers’ Liability Act 1984 define ‘occupier’, but rely on the common law usage of the word. Following case law, occupation is determined by the amount of control a person has over the property. There more control a person has over the property, the more likely he is to be considered the occupier under the Acts. More than one person may be regarded as the occupier of the same property at once.
Landlord and tenant
Because a tenant with exclusive possession of their rented property has significant control over it, as throughout the duration of the tenancy they have the right to exclude every person including the landlord, the tenant will be considered the occupier. This therefore means that the duties laid out by the Occupiers’ Liability Acts are imposed on the tenant rather than the landlord.
The landlord will only be considered the occupier of rented property if he has retained control of it, so this cannot happen where the tenant has exclusive possession. If a landlord has retained control of certain parts of the property, such as stairways, the landlord will be regarded as the occupier of this part. Therefore, the tenant would owe a duty of care in respect of the part of the property of which he has exclusive possession, and the landlord would owe the duty in respect of the other areas.
Where a tenancy agreement imposes a duty to carry out repairs on the landlord, he will be co-responsible with the tenant for the conditions of the premises as occupier.
Where the landlord was responsible for the design or construction of the premises, he will also be liable for dangers caused by the state of the premises or things done or omitted to be done on them.
The duty of care
Occupiers’ Liability Act 1957
An occupier of premises owes the same ‘common duty of care’ to all of his visitors, due to section 2(1) of the 1957 Act.
Section 1(2) defines “visitors” as persons to whom the occupier invites or permits to enter or use the premises; so visitors are persons who have the express or implied permission of the occupier to be on the premises. A person who is on the property due in order to exercise a right conferred on them by law is also considered a visitor.
If a visitor exceeds the occupier’s permission, such as by going into a part of the premises where he was told by the occupier not to go, he will become a trespasser. He will then no longer be owed a duty under the 1957 Act, but may be afforded lesser protection under the 1984 Act.
Under section 2(2), the common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.
These circumstances to be considered include the degree of care which would ordinarily be looked for in such a visitor. An occupier must be prepared for children to be less careful than adults, but can expect a person to appreciate and guard against any special risks ordinarily incident to the exercise of his calling. (Section 2(3)).
When determining whether the occupier has discharged the common duty of care to a visitor, section 2(4) requires regard to be had to all the circumstances. Where a visitor suffers damage despite the occupier having warned him of the danger, the occupier’s warning will not absolve the occupier from liability unless in all of the circumstances the warning was enough to enable the visitor to be reasonably safe.
Where damage is caused to a visitor by a danger arising from the faulty execution of any work of construction, maintenance or repair done by an independent contractor employed by the occupier, the occupier is not to be held responsible for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor. The occupier must have taken any steps that he should reasonably have done in order to satisfy himself that the contractor was competent and that the work had been properly done.
Occupiers’ Liability Act 1984
Persons who are not visitors as have not been given the occupier’s permission to be on his premises are not afforded the same degree of protection against dangers on the property. Under the 1984 Act, the duty owed by the occupier is a duty to take such care as is reasonable in the circumstances of the case to see that persons on the property do not suffer injury by reason of a danger (section 1(4)).
However, under section 1(3) this duty arises only where:
- the occupier is aware of, or has reasonable grounds to believe that a danger exists;
- the occupier knows or has reasonable grounds to believe that the person on the premises is in the vicinity of this danger or may come into the vicinity of the danger (whether or not the other has authority to be in the vicinity), and
- the risk is one which, in all the circumstances of the care, the occupier may reasonably be expected to offer the other some protection.
The occupier will discharge his duty where he takes reasonable steps to give warning of the danger concerned or to discourage people from incurring the risk (section 1(6)).
Although a tenant may try to use the provisions of the Occupiers’ Liability Acts to compel their landlord to carry out repairs to the property, this is of limited use as the landlord has a duty only in respect of the parts of the property of which he retains control. Further, no liability arises unless and until an injury occurs.
A landlord does have statutory duties implied into the tenancy agreement by s. 11 Landlord and Tenant Act 1985. This provision imposes duties on the landlord to keep the structure and exterior of the property in repair, and also to maintain installations for the supply of electricity, heating, water and sanitation. See Letting Factsheet 11 for further information.