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Occupation and Control of Property

In the context of premises liability, a person is presumed to occupy and control a premise when:

  • a person is in occupation of the land with intent to control it;
  • a person has been in occupation of land with the intent to control it continuously without any interference in such possession; or
  • a person is entitled to immediate occupation of the land.


In order to impose a legal duty for occupation or control of premises it must be established that the defendant had the power and right to admit individuals to the premises or to exclude them from the premises[i].  For instance, in order to make a property owner liable for his/her use of adjacent land for hunting and other purposes it must be established that such property owner had the right of possession to the land or s/he had the right to exclude others from the property.

Therefore, a person having neither occupation nor control of premises is under no legal duty to an invitee or another as to the condition or use of such premises[ii].  Hence, a bare title owner of real property who acquires title merely as an accommodation will not be liable for injuries incurred on the premises.  This is provided that the premises is occupied by another person who pays the mortgage, taxes, utilities, and maintains the premises from the date title is acquired.

[i] Stone v. Sunset Inn, 1999 Ohio App. LEXIS 158 (Ohio Ct. App., Summit County Jan. 27, 1999).

[ii] Garner v. McGinty, 771 S.W.2d 242 (Tex. App. Austin 1989).

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