Wildlife Leasing Considerations

Becky McPeakeProfessor – Wildlife ExtensionArkansas Forest Resources Center

Purpose & Objectives

• Create awareness about the need for hunting leases to be a written contract – not a handshake!

• Understand the components of a hunting lease

• Be prepared to meet with your attorney when writing a hunting lease – Save time and therefore attorney fees

Basics of a Hunting Lease

• Hunting lease is a contract between two parties.

• No surprises.

• A detailed agreement in written form.

• Protects both landowner and hunter.

The Basic Contract

• Landowner’s name & address

• Hunter’s name & address

• Who is entitled to enter the landowner’s land for the purpose of hunting

• List the name of the hunter

• List the name of the other allowed guests

• List of other agents, employees, invitees, or visitors

The Basic Contract

• Leasing to a hunting club– Arkansas law does not allow unincorporated

associations to enter into leases.

– Hunting club must be incorporated to sign a lease; otherwise hunting lease may be declared null and void. (North Little Rock Hunting Club v. Toon)

– A landowner should not enter into a lease with an unincorporated association.

Have these in the file!

• For all officers, agents and members of a hunting club leasing the property, have the following:– Name– Address– Driver’s License Number– Date of Birth– Contact information

• Property description– Specific legal description, including county

and state– Map of property boundaries of leased land

• Duration of the lease– Beginning and ending date hunter(s) is

allowed on the property• How & when payment is to be made

– Monthly? Yearly? Seasonally?

The Basic Contract

• Security Deposit– Is one required?– How much?– When is it due?

• Restrictions on Use – Is hunting restricted to certain game?– Is hunting restricted to certain seasons?– Can they fish in the pond?– Can they drive their ATVs anywhere when

no hunting season?

The Basic Contract

• Require hunter to maintain insurance covering use of the property

– Particularly applies when dealing with hunting or fishing clubs.

– What are limits for bodily injury and property damage that the landowner will require?

– Hunters might be able to purchase insurance only for the period they use your property.

The Basic Contract

• Communication: Is there farming or other leased operations ongoing?

• Cancellation terms

– With cause (e.g., hunting or criminal violations)

– Without cause (usually requires 30/60 days written notice by either party with pro-rated rental)

The Basic Contract

Additional Provisions

• Safety – expectations of conduct– stand placement / swinging on gamebirds– requirements for attending hunting safety

course

• Good neighbor relations– restrictions on placement of stands– game collection– farm activities– settling disputes with neighbors

Include “do-s” in the lease:• Report law violations to the landowner.• Keep vehicles from areas that shouldn’t be disturbed.• Communicate frequently with the hunter.• Allow access at all times to landowner and his/her

employees and agents.• Leave the forest, pastures, gates, etc. as they were found

upon arrival.• Describe where annual food plots can be developed.• Keep trash picked up.• Follow safe hunting practices & stand safety.• Others…

Include “do-nots” in the lease• Don’t damage trees, crops, buildings, fences, roads, or

improvements.• Don’t drive ATVs off trail.• Don’t cut growing timber.• Don’t build permanent structures.• Don’t sublease.• Don’t litter or dump hazardous materials.• Don’t leave the gate open.• Don’t break hunting, fishing or game laws.• Don’t release feral hogs or other animals .• No drinking alcohol before/during hunt.• Others . . . . .

Actions to protect the landowner and the hunter

• Liability protection• Risk management

Landowner Insurance

• Seek liability coverage.

• Consult with your insurance provider.

• Some hunting lease activities may be covered under an endorsement to your general liability policy.– “incidental business pursuit”

– may be tied to gross receipts for the activity

Additional Insurance Concerns…• Some excluded injuries may be common in

recreational pursuits– Most “hunting accidents” occur in tree

stands or ATVs• May need to:

– upgrade your existing policy– seek endorsements– seek insurance carried by

specialized brokers– self insure

• Incorporate insurance cost into fees

User (Hunter) Insurance• Require a certificate of insurance and

make sure it is current.

• Read the policy and make sure it covers activities in the lease.

• Make sure the policy is with a reputable firm and financially solvent insurance company.

• Make sure the policy specifically identifies the land where the activity will take place.

• Make sure you are the named insured.

User (Hunter) Insurance

• Make sure the users follow the terms, conditions and provisions of the policy.

• Make sure the policy indemnifies you if a judgment is obtained against you.

• Make sure the policy covers your legal fees and expenses if you are sued.

• Make sure the users confine their activities to the location in the policy.

Insurance Providers• Check with your current insurance provider

• Internet search for “hunting lease insurance” or “hunt club insurance” companies

• Arkansas Forestry Association membership benefit - Outdoor Underwriters Insurance (www.arkforests.org)

– Hunt Club Insurance– Timberland Insurance

Arkansas Recreational Use Statute

• Limits the landowners’ liability to the user.– A landowner who invites anyone to use his/her land for recreational

purposes does not assure the land is safe.– Landowners don’t assume responsibility for injuries to persons or

property caused by the user (hunter).– Liability not incurred for natural or artificial conditions, structures, or

personal property on the land.

• Creates a protection to the landowner for permitting recreational use land.– Designed to encourage landowners to make areas available to the

public for recreation.– If you charge a fee, your immunity may be affected under the

statute.

• “Charges” includes admission fees for permission to go upon or use the land, but does not include:– Sharing of game, fish or products

– Contributions in kind, services or cash paid to reduce or offset costs and eliminate losses from the use (e.g., property taxes, insurance, habitat improvements)

Arkansas Recreational Use Statute

• Since charging for recreational use of land may affect your immunity from liability under the recreational use statute, consider other means of limiting liability, such as through:– reimbursement for property taxes – reimbursement for land improvements– insurance coverage– add verbiage to your contract consistent with

the Recreational Land Use Statute• Check with your attorney.

Limiting Your Liability

Limiting Your Liabilityfrom Uninvited Trespassers and

Non-paying Guests

• Written permission requirement• Posting paint• Signs

Hunting Regulation (AGFC)

• To hunt, fish, trap or release hunting dogs on private property, hunters must have permission from the landowner or leaseholder.

– Property not posted: verbal permission required.

– Property is posted: each person must carry written permission (“Permission to Hunt Card” available on-line at www.agfc.com)

• Written permission is not required of relatives of the landowner or lessee who can verify permission.

Posting Paint (AFC)“It shall be unlawful for any person to enter upon any real

property posted under the provisions of this subchapter without the written consent of the owner or lessee of the real property.” ACA 18-11-403(a)(2)

Purple, semi-paste, tree marking paint which meets or exceeds the following specifications:

• Pigment . . . . . . . . . . . . . . . . . . . . . . 62.6%– Titanium Dioxide 22.2%– Calcium Carbonate 77.8%

• Vehicle . . . . . . . . . . . . . . . . . . . . . . . 37.4%– Oleoresinus Vehicle 47.2%– Petroleum Solvents 45.4%– Driers, wetting agents, & tinting materials 7.4%

Signs

• “Posted” and/or “No Trespassing” in letters at least 4” high.

• Readily visible.• Forested land – signs placed 100 feet apart and at

each road entrance.• Cultivated land, orchards, pasture land,

impoundments, other – signs placed 1000 feet apart and at each road entrance.

Risk Management

• Reduces your exposure to liability.

• Don’t assume all users have common sense.

• Don’t assume users are aware of obvious dangers on the property.

Limiting Liability for Paying Clients

• Signed contract (lease agreement)• Include descriptions of hazards on lease• All users sign a Release Agreement• Form a Limited Liability Corporation (LLC)

Risk Management• Post warning signs of hazards• Conduct routine safety audits and keep a record.• Remove potentially dangerous

objects.• Fill in abandoned wells and holes.• Fence off dangerous areas.• Make sure hunters are aware of other users that

might be on the property.• Keep livestock, horses, or other animals separate

from users.

Risk Management• Deal with “attractive nuisances”

such as barns, ponds, machinery.– Require children be supervised at all

times.

• First aid awareness, nearest hospital, emergency response procedures, etc.

• Make a list of do’s and don’ts, and give it to all users.

• Make sure they read your list – read it aloud to them.

Release Agreement

• Releases the landowner from legal liability for injuries the user may receive while on your property.

• Many factors determine how a judge will rule on a release agreement.

• Some attorneys contend not worth the paper written on, but may add another legal barrier.

Limited Liability Company (LLC)• Protects members from personal liability• Keep payments and expenditures in a separate

account – do not mix with personal• More flexibility than other types of corporate

arrangements• Arkansas Secretary of State

– Initial set-up charge– Annual franchise fee

• Additional requirements & tax structure• Seek attorney’s assistance to determine if this is

the best option for you

Before executing a hunting lease:

• Identify your goals for the property.• Identify whether adequate wildlife or fish

populations exist on the property.• Determine your price.• Draft your written agreement (contract).• Identify any special concerns you might

have & incorporate them into the lease.• Hire an attorney to prepare the legal

contract, i.e., hunting lease.

Free Resources

University of Arkansas Division of AgricultureCooperative Extension ServiceArkansas Forest Resources Center(www.uaex.edu)

National Agricultural Law Center(nationalaglawcenter.org)

Questions?