This post is not a substitute for legal advice
Recently, I’ve been asked some questions on developing hunting leases. I realize this information probably would have been useful before the start of deer season, but I’m readying you for next hunting season. This resource provides a thorough of checklist of many issues you should consider when developing a written hunting lease.
Hunting leases can be a useful tool for farmers looking to reduce deer populations, limit deer damage to crops, and provide the landowner with additional income. Whatever your reasons for wanting to lease your land out for hunting, it is always good to have a written lease which protects both parties.
Before we look at issues to consider in drafting your hunting lease, I wanted to direct you to existing resources to assist you in drafting your own hunting lease. Within the University of Maryland Extension, Jonathan Kayes, Extension Specialist-Natural Resource, has a short and long form hunting leases available in Landowner Liability and Recreational Access. Tiffany Dowell Lashmet, Legal Specialist with Texas AgriLife Extension, has a publication titled Hunting Lease Checklist available online. For those who just want permission to hunt on a specific property with no lease, the Maryland Department of Natural Resources has a “permission to hunt” form available. Sample hunting leases are also available online through the Michigan Farm Bureau, Mississippi State University Extension, and Kansas State University AgManager.info.
One thing to remember when using a sample lease or any sample legal document is that document was created based on how the drafter thought a lease should look generally. This means it may not work in every situation; you should consult an attorney to have a lease drafted to fit your needs.
As you start to develop your hunting leases, issues to consider include:
- Property to be leased – Will you be leasing all your property or only a portion of it? Be specific to the exact property you will be leasing. Use legal descriptions when possible or utilize an aerial photo of the property
- Rental rate – If you have leased agricultural land before, you know that setting the right rental rate is important. With hunting leases it can be equally important. Rental rates can be per acre, per animal, per person, per year, or another form. Talk to other neighbors about what they are charging if they are leasing land for hunting to determine what a good rental rate is for the area. Charging a rent to hunt on the property will take the landowner out of protections from Maryland’s Recreational Use Statute, which limits a landowner’s liability when the landowner allows user access to the property for free. There are exceptions to this, such as when you take a share of game caught on the property. To learn more about the Maryland Recreational Use Statute, please see (www.aglaw.umd.edu/blog/what-exactly-is-a-recreational-use-statute). You may want to consider a rental rate allowing you to keep the protections of the recreational use statute.
- Uses on the property – Will you be allowing the lessee to bring on additional parties? Will you cap that number? Will you allow the uses of ATVs? What happens if a gate is left open? Can the lessee use any buildings on the property? Should animals be cleaned in a specific area (this maybe a big deal if you live on the property and do not want to see an animal cleaned near your house)? Will lessees be able to construct improvements on the property (such as deer stands)? Take a moment and consider the answers to these questions as you draft your hunting lease.
- Liability insurance and release from liability – Accidents happen, even to the most experienced hunter. With that in mind, as the landowner you should consider requiring the hunter lessee to have liability insurance during the life of the lease. Landowner may want to also require language in the lease releasing the landowner from liability and indemnifying the landowner. This may be necessary if the lessee is allowed to bring other parties onto the property. Ashley has developed a good checklist to utilize when developing a liability waiver (www.aglaw.umd.edu/blog/liability-waiver-something-you-should-consider-to-protect-your-farm).
- Abiding by state and federal laws – On that same note, you may also consider including language requiring the lessee to follow applicable state and federal laws. If this is not done, then lessee would be considered in breach of the lease.
- Safety practices – Are there areas on the property you do not want guns shot? Do you want the lessee to follow safe practices? These are issues to consider. If you are living on the property, you may want to restrict the use of guns in the direction of your home, barns, and other equipment.
- Retaining a right to hunt for yourself – Do you also want the right to hunt on the property? Make sure you retain that right for you or other family members who enjoy hunting on the property. Consider if you need to set limitations on when you or the lessee can use the property for hunting (lessee gets first day of season, you get second day, and lessee gets every day after that). Retaining this right can potentially impact the rental rate.
- Dispute resolution clause – Consider adding language requiring the use of alternative dispute resolution services before going to court with a dispute. This language will potentially limit costs and quickly resolve disputes.
- Attorneys’ fee – Generally, a party bringing a successful lawsuit does not get attorneys’ fees from the losing party unless there is a statute or contract authorizing this. Parties should consider adding a clause requiring the unsuccessful party to pay the attorneys’ fees of the successful party.
These are just some thoughts as you develop your hunting lease. Remember to utilize this checklist and the other resources listed earlier as you develop your lease.