What are risks to us if we let a neighbor not only to use our boat ramp and dock, but to advertise it on line as an amenity for her bed and breakfast?
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What are risks to us if we let a neighbor not only to use our boat ramp and dock, but to advertise it on line as an amenity for her bed and breakfast?
My neighbor and I both have bed and breakfast businesses that operate out of our homes. We just built a boat ramp and bulkheaded dock area. We have been congenial neighbors and have been allowing the neighbor, her friends and family, and her B&B guests to use our boat ramp without asking permission on every occasion. However, I just learned my neighbor’s web site lists our boat ramp and dock as amenities for her B&B.t Before I ask her to take that off the web site, I want to be armed with practical reasons explaining why I want her to take that claim off. Does her having that claim published in her advertising imply to guests that they have the right to be on our property? If I know that claim is there and don’t ask her to remove it, does that in effect give her guests the right to be on our property? If there is a liability issue and her guest gets hurt, it will be a claim on my insurance, not hers. Are we being foolish to allow her open access to our ramp and dock, to use our property without any oversight from us?
Asked on May 18, 2009 under Real Estate Law, North Carolina
Answers:
MD, Member, California Bar / FreeAdvice Contributing Attorney
Answered 15 years ago | Contributor
Sounds like you have already gone through the legal reasons.
1. Bottom line, now you have basically allowed strangers onto your property, thereby impacting your QUIET USE AND ENJOYMENT OF THE PROPERTY.
2. If it continues for a certain amount of time (usually years), you in essence have given her a prescriptive easement over your property.
3. Depending on your state's invitee and guest statutes, you may be held liable for a lot more than simply what your insurance covers. You would need to keep it danger free and oftentimes may need to warn people coming onto your property about said dangerous conditions. Sometimes that won't absolve you of liability. God forbid it be children -- that is a whole other issue onto itself and called attractive nuisance.
Review the following and then contact a real property/land use attorney in your state to help you construct a thoughtful letter to give this other person written notice (trust me, it will help you in the end). Try www.attorneypages.com to locate an attorney. Here are some laws:
§ 38A‑1. Purpose.
The purpose of this Chapter is to encourage owners of land to make land and water areas available to the public at no cost for educational and recreational purposes by limiting the liability of the owner to persons entering the land for those purposes. (1995, c. 308, s. 1.)
The following definitions shall apply throughout this Chapter, unless otherwise specified:
(1) "Charge" means a price or fee asked for services, entertainment, recreation performed, or products offered for sale on land or in return for an invitation or permission to enter upon land, except as otherwise excluded in this Chapter.
(2) "Educational purpose" means any activity undertaken as part of a formal or informal educational program, and viewing historical, natural, archaeological, or scientific sites.
(3) "Land" means real property, land, and water, but does not mean a dwelling and the property immediately adjacent to and surrounding such dwelling that is generally used for activities associated with occupancy of the dwelling as a living space.
(4) "Owner" means any individual or nongovernmental legal entity that has any fee, leasehold interest, or legal possession, and any employee or agent of such individual or nongovernmental legal entity.
(5) "Recreational purpose" means any activity undertaken for recreation, exercise, education, relaxation, refreshment, diversion, or pleasure. (1995, c. 308, s. 1.)
For purposes of this Chapter, the term "charge" does not include:
(1) Any contribution in kind, services or cash contributed by a person, legal entity, nonprofit organization, or governmental entity other than the owner, whether or not sanctioned or solicited by the owner, the purpose of which is to (i) remedy damage to land caused by educational or recreational use; or (ii) provide warning of hazards on, or remove hazards from, land used for educational or recreational purposes.
(2) Unless otherwise agreed in writing or otherwise provided by the State or federal tax codes, any property tax abatement or relief received by the owner from the State or local taxing authority in exchange for the owner's agreement to open the land for educational or recreational purposes. (1995, c. 308, s. 1.)
§ 38A‑4. Limitation of liability.
Except as specifically recognized by or provided for in this Chapter, an owner of land who either directly or indirectly invites or permits without charge any person to use such land for educational or recreational purposes owes the person the same duty of care that he owes a trespasser, except nothing in this Chapter shall be construed to limit or nullify the doctrine of attractive nuisance and the owner shall inform direct invitees of artificial or unusual hazards of which the owner has actual knowledge. This section does not apply to an owner who invites or permits any person to use land for a purpose for which the land is regularly used and for which a price or fee is usually charged even if it is not charged in that instance, or to an owner whose purpose in extending an invitation or granting permission is to promote a commercial enterprise. (1995, c. 308, s. 1.)
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