Who's Liable For Injury?
We cash rent about 300 acres of Missouri farmland to a producer in our area. We carry $500,000 in liability insurance, but we're worried about who would be responsible if this farmer or one of his workers were injured while working there. Is there some type of legal agreement we should ask our tenant to sign?
In general, a landlord is not liable for injuries to third parties that occur on premises occupied by a tenant.
The tenant has possession over the leasehold premises during the tenancy, and has control over what occurs on the leased property. There are, however, six well-recognized possible exceptions to this general rule:
1. If the landlord conceals dangerous conditions or defects that cause the third party's injury, then the landlord will be liable.
2. If conditions are maintained on the premises that are dangerous to persons outside the premises, the landlord is liable for any resulting injury.
3. A landlord will be liable if the land is leased for admission of the public.
4. If the landlord retains control over part of the leased premises the tenant is entitled to use, the landlord could be held liable for injuries suffered on the part he controls.
5. If the landlord makes an express covenant to repair the leased premises but fails to do so resulting in an injury, the landlord is liable.
6. A landlord is liable for injuries resulting from negligence in making repairs to items located on the leased premises.
The common thread in all these exceptions is that the landlord has been involved in the control and possession of the area in which the injury occurs.
To relieve you of liability, you can add language to the lease stating that the tenant has full and exclusive possession and control over the leased land; and you must actually refrain from exercising any possession or control over the leased land.
—Robert P. Achenbach/Agricultural Law Digest
We live on a ranch in San Antonio, Texas, that has been our family's land since the late 1800s. Recently our neighbors have leased their property to a sand pit operation, and it has created a terrible situation for us.
Our dam has been breached three times now due to runoff from the pit, and our stock tank is silted in. There are tires, oil cans and antifreeze containers that wash down on us now. We've had water in our homes and our barns, and I can't tell you how many times I've fixed the fence.
There's some big money involved here, and no one wants to help us. We want our property put right again. How do we put some pressure on and get something done?
In Texas, landowners are generally entitled to use their land to the enjoyment and benefit of themselves and no other. However, landowners may not use their land in such a way as to cause a trespass or detriment to the property of an adjoining landowner.
A trespass is generally thought of as a personal invasion by a body. But a trespass also can occur in situations like the one you describe. Here we're talking about things invading or trespassing on your property due to the way your neighbor allows his land to be used.
Noise, smoke and other things—even light—can be a trespass and may interfere with a person's enjoyment of their property.
Sadly, putting pressure on in this situation may require a lawsuit against your neighbor. Since you are not in privity of contract with the lease operator, you may have to bring suit against your neighbor and get them to involve their lessee that way.
—Scott Tidwell/Tidwell & Tidwell LLP
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I've lived on the same land in Alabama since 1963. Three years ago we put a cattle fence down our pasture, and shortly after that the land next to us sold. The new owner met with me and seemed to agree to the property line I showed him. But he had a survey done, and came back and told me my fence was about 25 feet over on his side. I don't think I should have to move this fence. Do I have to go by what his new survey says, or can I put it to the test?
You may be able to avoid moving your fence because the old neighbor—and to some extent the new neighbor—previously recognized that fence as the boundary. Depending on laws in your state, the boundary line may have been set when your old neighbor failed to object to its placement.
Many states have established a method for peacefully resolving boundary disputes by ruling that if one neighbor builds a fence on another's property and that neighbor does not object in a timely fashion, the fenceline becomes the boundary line by acquiescence.
Another possibility that may save you from having to move that fence is the rule of adverse possession. If your possession and use of the property can meet the elements of adverse possession in your state, title to the strip of land inside your fence may be vested in you.
Both boundary by acquiescence and adverse possession have many intricacies specific to individual states, so consulting an attorney licensed in your jurisdiction is important.
—Eric L. Pendergrass/Smith, Maurras, Cohen, Redd & Horan