Understanding How The Occupiers’ Liability Act Applies To Vacant Properties

If you’ve got a property or premises sitting vacant, the chances are that you’re looking to capitalise on that investment. A claim under the Occupiers’ Liability Act 1984 can completely derail those intentions, alongside potentially harming your reputation, placing people in danger, and resulting in serious legal consequences.

What Is The Occupiers’ Liability Act & Why Is It Important?

The Occupiers’ Liability Act is the law that covers the legal duties that property owners owe to those who visit their premises. Originally released in 1957, the Act was amended in 1984 to include a duty of care for trespassers or visitors to the property when the owner or occupier is not present.

When we consider the Act, and especially so in relation to vacant property, we often forego the initial iteration and look exclusively at the 1984 amendment. This gives us a better understanding of what the law entails and helps contextualise why those stipulations matter.

The Act was amended as a direct result of the now-enshrined British Railway Board v Herrington case of 1972. The case concerned a six-year-old boy who was electrocuted after entering a railway line through a broken fence. The judge ruled in favour of the family of the boy, and the case prompted a major-scale review into the applicability of the Act to trespassers.

The amended Act gave more protection to those who trespass, and places a greater (and, we feel, more necessary) onus on the property owner to make sure that their property is protected, and that any dangers are adequately signposted. The central ruling in the case above is that the broken fence did not give adequate protection against clear risks (the electrified lines and passing trains, for instance).

Therein lies the reason why the Act (in its current form) is so important. It offers clearer guidelines for property owners – essential, given that the 1957 Act was much less restrictive and only covered serious personal injury or death – and more recourse for those who are injured at improperly protected premises.

It also gives courts the power to properly sanction those who knowingly breach the Act. This again reinforces that sense of accountability for property owners – owning a property means you have a duty of care to those who use it.

Where Does The Act Apply To A Vacant Property?

There’s a range of circumstances where the Occupiers’ Liability Act applies to vacant properties, including how the perimeter of the site is secured, the warning signs in place to alert members of the public to potential dangers, and additional security measures (like boarding or temporary security systems) in place to deter trespassing or unknown entry.

These are all the more tangible areas where you would need to demonstrate compliance with Section 3 of the Act, which places liability on the property owner if:

• They are aware of the danger or have reasonable grounds to believe it exists
• They have reason to believe that others could come into contact with the danger
• They can be reasonably expected to protect against any present dangers

Across history, we’ve seen enshrined examples of these stipulations both protecting the property owner and delivering just punishment where there’s no evidence of the dangers being signposted. 

For instance, in Wheat v Lacon (1966), the lack of maintenance along a handrail meant that a guest was injured in a fall. Here, because the danger was known about (in that maintenance was long overdue) and the property owners could be reasonably expected to mitigate the issues (with repairs or warning signs), the owner and property manager were found jointly responsible.

On the other hand, the 2004 case of Rhind v Astbury Water Park ruled in favour of the occupier, despite the claimant being injured by sunken fibreglass in a lake. This is because the occupier had put reasonable measures in place (in this case, warning signs of deep, uncharted waters) and could not have been reasonably expected to know about the submerged materials.

Of course, these are just the examples cited as part of training or knowledge around the applications of the Occupiers’ Liability Act – there are thousands more that get settled in small claims court. That doesn’t make those less impactful, however, and it’s important to analyse your vacant site and what might be the problem areas. 

What Might Be The Problems For My Vacant Property?

Some of the most common issues for vacant properties are disrepair (such as loose flooring or damaged staircases), improper or dangerous construction (asbestos or lead piping, for instance), and flooding or water ingress. These affect a majority of vacant properties, especially those that are more rural, and are an important consideration when looking to mitigate liability.

However, some risks are specific to different types of vacant units or properties. Take retail properties as a great example. While we’ve outlined the risks to vacant retail units in much greater detail in our complete article, we’d pinpoint the primary concerns to be around:

• Broken glass around cabinets, doorways, or displays
• Loose structures or fittings (like shelving)
• Falling debris (such as lighting or signage)
• Loose wiring and electrical components

Perhaps the area where that risk is most pronounced is around temporarily vacant construction projects. As we saw with the stalled Inverness prison project, construction sites (even major works with substantial backing) do stall, and leave substantial vulnerabilities. We’d foresee these to include:

• Plant machinery, equipment or storage
• Scaffolding or temporary structures
• Foundational work including concrete, breezeblocks, or reinforcement steel (rebar)
• Loose ground or areas that have been excavated
• Materials or site kit
• Broken fencing (especially if it’s cheaper Heras fencing)

If you’re the owner of a more rural vacant property, you might find that there are unique risks that make your property more at risk of claims under the Act. That could be increased water ingress (either due to poor drainage, or as a result of the construction of the property itself), invasive species (mice, rats, or pigeons) and associated biohazards, or other structural concerns (unstable roofing, for instance).

All of these require a considered and property-specific approach to addressing the Occupiers’ Liability Act. 

What Are The Consequences Of Breaching The Act?

The primary consequence of breaches of the Act is usually financial, with statistics showing that the majority of claims under the Occupiers’ Liability Act are settled in small claims court. However, for more serious breaches or continued violations of the stipulations of the Act, there can be more serious consequences like debarment from property ownership, a criminal record, or even jail time.

We’d draw attention here to the outcome of Keown v Coventry Healthcare NHS Trust (2006), where an 11-year-old boy fell after climbing the underside of a fire escape. Here, the Court of Appeal ruled in favour of the occupier, stating that the premises themselves are not inherently dangerous – it’s the misuse of these premises that makes them dangerous.

However, there are countless examples of where negligence of responsibilities does have very real consequences. As part of our exposé on the real cost of a construction site security breach, we touched on the closure of Ardmore Group, which stemmed from client claims as a result of historic liability issues.

Ultimately, the penalties for not being prepared for the claims that can arise under the Occupiers’ Liability Act put you at massive, avoidable risk. 

What Measures Should I Have In Place?

At a minimum, we’d recommend  that you have adequate signage in place to warn possible trespassers of the risks, as well as boarding and bulky locks or access controls so that anyone who does ignore your warning can’t easily access your property. That’s particularly important if there’s a more pronounced risk at your premises, like structural issues.

Under Section 5 of the Act, risk may be “discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk”. 

Similarly, Section 6 further mitigates risk for property owners who’ve given sufficient warnings, where “risks are accepted willingly” by the trespasser. Those Sections are ideal to bear in mind as you decide what’s right for your property.

What we’d also advise here is taking the time to consider the risk factors of your property. A city-centre retail unit will see substantially more passing foot traffic than a rural home that’s earmarked for renovation, meaning that the risk of potential trespassing is far higher. 

For those more at-risk properties, it’s important that you conduct a full site protection audit, and with ProFM Group, you’re in safe hands. Our extensive portfolio of vacant property security means that we’re well-versed in the Occupiers’ Liability Act and its applications to a wide range of vacant premises, from former industrial titans to insolvent retailers.

Partnering with us sees you receive a full site audit where we’ll do all the legwork to identify and mitigate any vulnerabilities, install signage and fencing as part of any package, and remove any possible liability. 

From low-cost tech solutions in our VPOD visually-verified intruder alarms, to mobile security patrols designed to maximise coverage within your budget, ProFM Group offer practice, site-specific solutions designed to suit the UK’s growing population of vacant properties. Get in touch today to discuss your options, and find out how we can help you meet your obligations under the  Occupiers’ Liability Act worries.