Is Your Property an “Attractive Nuisance”?

By February 25, 2020 Real Estate
Is Your Property an “Attractive Nuisance”?

Nuisance law in Arizona—as elsewhere—can be a complicated topic. And perhaps the most complicated of these topics—one that some property owners claim goes to a certain extent against what they consider common sense—is that of “attractive nuisance.”

A property owner can be held liable for creating an attractive nuisance on their own property when someone else trespasses onto their property. Most landowners consider a trespass to be illegal, which to their minds should render a plaintiff unable to get money from them if that plaintiff got injured following the trespass. But not so. When a property is or contains an attractive nuisance, the owner of a property can be forced to pay for the harm caused to someone else who trespassed on their property. This leaves many landowners shaking their heads.

But there’s a wrinkle.

You see, the sort of person harmed by this “attractive nuisance” on a landowner’s property is a child.

Basically, a property is considered to either be or to contain an “attractive nuisance” if some element of the property that was created or placed there by the owner (or a previous owner) attracts a child to trespass on the property and then that child comes to harm as a result. But this isn’t a blanket statement. There are layers to the liability of a landowner, in part depending on actions that have not been taken by the landowner that should have been, were they reasonably responsible and capable of foresight.

Arizona courts generally follow the rules laid out in the Restatement (Second) of Torts, Section 339, which make a possessor of land subject to liability if:

“(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”

So the questions to ask yourself about your property are: Are you aware of children who enter your property or who might do so? Are those children of an age or level of mental capacity that they might not understand what could cause them harm? Have you created a condition that children might find attractive and that might cause them harm or death if they are attracted to it? Can that condition be made considerably less dangerous through relatively little cost or effort (as compared to how much harm might come to a child that is attracted to it)?

If you answer yes to even a preponderance of these questions, you should do everything you can to secure the condition that might attract a child—in other words, you must “exercise reasonable care” to ensure your property does not harm any children who enter onto it, or you may find that not only do you find yourself feeling bad for a child having come to harm on your property, but you are also forced to pay damages as a result.

If you’re a real property owner in Mesa or anywhere else in the state of Arizona, and feel unsure whether your property poses a risk for attractive nuisance, you can call us to consult with an experienced attorney with strong scruples who can help you know how to mitigate risks. At ProvidentLaw, our real estate attorneys also represent parties on either side of real estate and financing transactions, including buyers, sellers, landlords, tenants, lenders, borrowers, trustees, guarantors, shareholders, partners, and others. We structure, negotiate and document a variety of real estate and financing transactions, such as leases, purchase and sale agreements, loans and development agreements for a variety of commercial and residential projects. Contact us for more details.

Christopher J. Charles is the founder and Managing Partner of Provident Law ®. He is a State Bar Certified Real Estate Specialist and a former “Broker Hotline Attorney” for the Arizona Association of REALTORS ® (the “AAR”). Mr. Charles holds the AV ® Preeminent Rating by the Martindale-Hubbell Peer Review Ratings system which connotes the highest possible rating in both legal ability and ethical standards. He serves as an Arbitrator and Mediator for the AAR regarding real estate disputes; and he served on the State Bar of Arizona’s Civil Jury Instructions Committee where he helped draft the Agency Instructions and the Residential Landlord/Tenant Eviction Jury Instructions.

Christopher is a licensed Real Estate Instructor and he teaches continuing education classes at the Arizona School of Real Estate and Business. He can be reached at Chris@ProvidentLawyers.com or at 480-388-3343.