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UK Real Estate Insights
Landowners need to be alive to the risks with third party occupiers accessing their land. This article looks at some key issues that apply in Scotland.
Private landowners of land, in Scotland, have a number of considerations to weigh up when third party access is taken on their land, over and above any title rights that may appear on their title deeds.
Each case must be considered on its own individual merits, as access covers a variety of facets of law, such as property, contract, negligence, delict, insurance and statute. This note explains some of the main issues, exclusively relating to bare land (not access to buildings).
Various pieces of legislation have entitled third parties legitimate rights over land, such as statutory service provides and those exercising public rights of way, often referred to as rights to roam. Individuals can also over time acquire prescriptive rights (prescriptive servitudes) through exercise of rights of access over a statutory period of time, without interruption.
However, it is not uncommon for individuals taking access to erroneously take access without a right to do so. In Scotland, there is Trespass (Scotland) Act 1865, which makes temporary unauthorised access subject to a civil claim. Trespass can also occur if access is withdrawn and then access continues to be taken. Preventative measures such as fences and boundaries are often preferrable to taking Court action in respect of trespass, looking at case law numbers.
Ancillary to an unauthorised right of access, if damage also occurs then damages/ criminal liability can be pursued. Individual owners should not take steps to remove authorised individuals without seeking police or legal assistance, or they themselves could be subject to a criminal offence. While in limited cases reasonable force may be permitted (i.e., in a private dwelling at night) using force over a trespass on bare land is unlikely to be seen favourably by the Courts.
All that said, an individual owner has reasonable duty to prevent injury to third parties where is reasonably foreseeable that injury may occur. Here the realms of delictual liability and negligence need to be considered. Occupiers' Liability (Scotland) Act 1960 imposes a duty on occupiers to guard those entering their premises and their property against dangers posed by the state of the premises, things done, or omitted to be done on the premises. There is no duty to guard against obvious dangers such as a river running through a park (Stevenson v Glasgow Corp (1908)). In addition, in McKevitt v National Trust for Scotland  2 WLUK 433, the occupiers of a property did not owe a duty of care to the public to protect them against tripping on a large stone which would normally have been obvious to anyone paying attention.
The issue is likely to be very fact sensitive. For example, in the case of Cowan v Hopetoun (2013) the Court of Session held that a duty of care arose in respect of an artificial feature of long-standing when a pursuer wandered off and fell into a decorative “ha-ha” (a type of sunken fence that was commonly used in landscaped gardens and parks in the eighteenth century). However, it was noted that the facts of the case were unusual and the feature unfamiliar and hidden to the pursuer. Owners need to consider if the position changes if they become aware of unauthorised individuals accessing the land. To what extent does an owner have a duty to prevent access by unauthorised third parties? Does an owner have a duty to secure/ fence the area? Are aware that there are holes and other trip hazards that people could fall into? Has a site assessment been carried out setting out risks, to mitigate any subsequent claim? If there are reasonably foreseeable risks of injury inherent in accessing the site, and the landowner has knowledge that people are accessing the site, erecting signs warning of any such dangers can only be to landowner’s benefit. It would be rare that authorised and unauthorised users may require access and therefore to allow land to deliberately to fall into disrepair to the extent that it could cause harm, needs to be considered.
The key case in the law of occupier's liability is now Tomlinson v Congleton BC . In a crucial passage, Lord Hoffmann stated that a duty "to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, or in the case of employees, or some lack of capacity, such as the inability of children to recognise."
Cases involving children have usually been looked upon more favourably. In British Railways Board v Herrington  the defendant owned a railway line fenced off from a meadow where children played. The fence was in a poor condition and the claimant, aged six, passed over the fence and was injured on a live rail. It was held that the defendants were negligent in allowing the fence to fall and remain in disrepair.
Placing signs might be helpful to the occupiers. However, their use is subject to compliance with the Unfair Contract Terms Act 1977. Signage should definitely be considered where non-business premises are concerned. However, even with business premises signs indicating what the risk is may be helpful as it may allow an argument that a duty did not arise in the first place as the risk was then obvious.