Commonage question

mikeoc85

Hi all,

My family have a situation at the moment where a nearby site is being redeveloped into a hotel.

It is beside a lake and there is a strip of land between the development and the lake. This strip is owned by 3 members of my family and the owner of the development. What I am wondering is, although they have right of way, where does this leave us in terms of liability etc for any of their guests?

We had a situation a couple of years ago where a person went fishing on the land and injured themselves, they tried to sue but we had a solicitor handle the matter and we were protected by a no trespassing sign too thankfully.

We're wondering where do we stand in terms of this situation though as the owner of the development has a right to access this land, does that right immediately pass on to guests of the hotel or how can we protect ourselves?

Furze99

The Occupiers Liability Act 1995 which was recently amended and well publicised, would be relevant - so look that up and recent changes. Uninvited visitors / recreational users like your fisherman - you have no duty of care to them, assuming you don't recklessly endanger them e.g. land mines or pit traps etc.

In this case though, I think paying hotel guests are definitely classified as invited users, therefore the hotel has a much greater duty of care to them.

The complicating issue here is that the lake shore strip is held in commonage and tbh I'm not au fait with the ins and outs of liability here. Common sense though would suggest that either the hotel acquires the land in question so they have sole title and liability or they erect a stout fence preventing any access to it.

mikeoc85

Thanks Furze99

Family won’t sell as a lot of our land is connected to it also. I would imagine this development was purchased with access to the lake in mind also for their guests so they won’t be keen on blocking that.

I wasn’t sure where we’d stand legally in regards to it or if we even have the right to stop his guests having access

Peregrinus

OK, couple of points.

1. From the OP, the strip of land isn't "commonage". It's a plot of land jointly owned by four people.
2. The OP mentions a "right of way", but is there a right of way here? As one of the four co-owners, the owner of the development can enter onto the land but (unless there is some agreement here that we are not being told about) he can't unilaterally invite or permit others to do so. The land is owned jointly; the four owners control it jointly. It is a matter for them jointly to invite or permit others to enter on or use the land.
3. Having said that, if the other three owners say nothing when owner number 4 permits or invites people to enter or use the land, there will be an implication that they have authorised him to do this.
4. If someone is injured on the land in circumstances which give rise to occupiers' liability, the four owners will be jointly liable. If three of them impliedly authorise the fourth to invite people onto the land, they will be just as liable as if they had invited the people themselves.

So, the three owners who are not developing a hotel on the adjacent site need to talk to the fourth, and ask him if his plans involve the hotel guests and visitors entering or using the strip of land. If not, then the land must be securely fenced and appropriately signposted to keep hotel guests/visitors out. If they do, then the three owners should make it clear that they will not agree to or permit this unless they are protected by the fourth owner (a) entering into an agreement to indemnify them from any claims made by guests/visitors to the hotel, and (b) taking out and maintaining insurance in respect of claims by guests/visitors who enter on the land. The fourth owner's commitments should be legally documented, and the three owners should instruct a solicitor to advise them on this and to draw up the necessary document.