Texas Hunting Lease and Liability Waiver Considerations

from Texas Ranch Journal | Summer 2023

Shooting and shot placement

BY NATHANIEL GILBERT

Hunting Leases in Texas seem simple enough: an individual or group pays a certain amount to enter the property for hunting. Often, leases are drawn up with this very simple idea in mind, and the landowner and the hunters sign the document with very little backand-forth. For years, decades even, no problems may arise and the relationship between the parties continues peacefully.

But what happens when problems arise? All too often in my practice, I receive calls from landowners who, having leased to individuals and groups throughout the years for hunting with no issue, have all of a sudden run into a group that presents several problems. Hunters harassing, moving, or providing unauthorized supplemental feed to cattle on the property, hunters bringing multiple other individuals who are not on the lease onto the property, staying on the property for weeks at a time during non-hunting seasons, or even attempting to curtail or limit landowner activities on the property such as fixing fences and clearing brush because such activities might affect the hunting prospects in some way.

Don’t get me wrong, hunting leases are by and large a good thing, and I encourage landowners who do not hunt and do not have family that hunt, to seriously consider having hunters on their property in some capacity. However, serious consideration must also be given to the documents that the parties sign—Gone are the days of handshake agreements and simple, one page, lease agreements. This is not necessarily because society has become more litigious and less trustworthy, but more so that land ownership and hunting itself have become much more complicated and intricate.

Consider, for example, my client on the Colorado front range, where waterfowl hunting has become more and more popular by the year. This client owned and farmed several irrigated circles of corn, and was approached by an individual who wanted to lease the property for goose hunting. The landowner agreed and they signed an agreement (without consulting an attorney) that allowed the hunter to “construct any commonly used blinds or structures,” and carried no limitations on guests of the hunter on the property. Well, imagine the surprise the landowner experienced when he saw a backhoe in the middle of his cut corn digging a large pit for 10 hunters to hunt from. My client had no idea that goose hunting had evolved since his experiences as a child to where it is now standard practice in the area to hunt from pit blinds in the middle of the corn field, and to do so with more than just your immediate family.

To be clear, the hunter in this situation did not do anything intentionally nefarious or malicious. The two parties simply did not have a “meeting of the minds”; they failed to talk about what it was they both thought a hunting lease was and what certain kinds of hunting meant to them. Each party had a different definition in their mind about what “goose hunting” and “blinds” meant to them. Each party had a different idea about how many people it was usual or common to hunt with. The situation was eventually resolved amicably, but just think how simple the conversation could have been that would have avoided the situation in the first place!

When you are looking to lease your property for hunting, there are several considerations that we want to take into account

TERM: GIVE YOURSELF AN OUT

Hunting leases often have 10 year terms or have automatic renewal clauses. This is a give and take situation. Hunters who know that they will be leasing the property for at least the next few years may have more invested in the property remaining a good place to hunt, whereas the hunter who does not have that security in returning to the property may not necessarily care about proper herd or habitat management. As a landowner, the longer term may be attractive in terms of not having to search for a new lessee again as well. But what if on year 2 of a five or ten year lease agreement, we find out that the hunter is not as trustworthy or conservation-minded as we thought? Has your lease been thoroughly drafted to provide an out for the landowner to use to terminate the lease? These kinds of provisions vary in their construction, and will depend on what the landowner truly wants out of the relationship—if the landowner fails to receive the benefit of the lease, the lease must be terminated.

Think about what you want on your property, and what you don’t

It is absolutely imperative that you consider what you want on your property before you enter into a hunting lease. I normally always advise a sit-down meeting with the people that you are considering entering into a lease agreement with before signing any documents. Ask what their goals are, how often will they be hunting, are they looking to do anything besides hunting (trapping, fishing, birdwatching, trail riding, etc.), and, will they be bringing anyone else. Tell them what you’re looking for, what your concerns are and what your dealbreakers are. Ask your neighbors—call your local extension office and ask if they know of other landowners in the area who have had hunters on their property and talk to them about what happened and what they wish they would have thought about.

Some clients don’t want night hunting for predators or hogs, others want to specifically require this as an additional condition for access in the name of predator and nuisance species management. Either of these conditions can be constructed best meet the management goals of the landowner, and failure to abide by these particular clauses is cause for termination, if your lease provides such abilities.

Landowners in Texas, for example, have a vested interest in hog population control on their property; very few property managers in our state have the mindset of maintaining a healthy population of feral swine. If your lease provides that the hunters on your property are responsible for managing the hogs on the property, then efforts must be made by the hunters to do so, and the lease should require them to maintain records of those efforts.

Whitetail deer hunting is, obviously, the main attraction for most hunting lease opportunities. Hunters have visions of big, mature bucks hanging on their wall, and will pay a premium for the chance to kill one. But does must also be taken on a property with a mind for management. Requiring harvest records and the taking of a certain number of does in a year is a common clause in hunting leases.

Biggest Benefit Besides Money

Supervision: Number one question from landowners in the hunting presentations that I do revolves around preventing trespassers and poachers. Number one way to prevent this: let someone on there to hunt. If you have 500 acres that you are only on in the summer for cattle, you can bet there will be trespassers on it. If you let a few guys hunt, they will be out there and supervising the property—People who want to trespass on a property are far less likely to do so if there are constantly trucks in the driveway.

Liability Concerns

Statutes Protecting Landowners in Texas

The statutes in Texas Civil Practice Code provide a great deal of benefit to landowners, and are worth discussing in detail. However, for the sake of this article, I will touch on them briefly and then allow for you to do your own research on those protections. Texas’ Recreational Use Statute, Chapter 75-001 of the Texas Civil Practice & Remedies Code, covers those landowners who allow access to their property for recreation but charge no more than 20 times the ad valorem taxes on the property for the past year. There are some additional requirements, but this is the basic premise for liability protection under the Statute.

The legislature went a step further in liability protection for landowners with the “Agritourism Act”. This Act protects landowners in the same vein as the Recreational Use Act, but with additional requirements. To receive protection under the Agritourism Act, landowners must place conspicuous signage on their property that contains language specified by the statute, that warns of potential dangers and injuries. Landowners may also fulfill the obligations of the statute by requiring each invitee to the property to sign a document containing additional statutorily specified language. Premade, heavy-duty signs meeting the requirements of the statute are readily available and clients should be advised to purchase and display these signs at entrances as well as staging areas for dangerous activities such as the shed where ATVs or rooms where firearms are stored.

Liability Waivers

If someone will not sign a liability waiver, then they have no business being on your property. Period. End of story. Ok, maybe not… The “lawyer behind the desk” advice is to have everyone who is not immediate family sign a liability wavier prior to entering your property. I know this is not necessarily practical, but it is the advice nonetheless. My job when I am working with clients is NOT to assume that everything will be fine and everyone is generally nice. My job is to best prepare my clients and their assets to survive the worstcase scenario when it comes to their property. The advice that we, as attorneys, give to our clients is reliant on Murphy’s Law: What can go wrong, will go wrong, and at the worst possible time.

Liability Waivers in Texas are generally enforceable, but must be express and conspicuous. Essentially, this means that it must state, expressly, that it is a waiver of negligence or injury, and not be a hidden clause or otherwise “inconspicuous” to the person signing the waiver. So, the waiver cannot be in the fine print of the lease, and it must be clear as to what the individual is waiving.

Going beyond the basic requirements, liability waivers should be an opportunity for individuals to fully appreciate and understand the risks that they are undertaking by participating in ranch and hunting activities. Tell your hunters about the hazards that exist on the property and make sure they understand those risks. Make sure that you give your hunters an opportunity to ask questions about those risks and that you take the time to go through those possible risks with them.

Hazards in hunting are, often times, not so obvious. If you are looking to have hunters on your property, it is imperative that you do a complete risk management audit on your property. For example, tree-stands and elevated blinds are one of the most popular parts of hunting, and also, the most dangerous.

A Wisconsin survey of injuries related to hunting found that over a 6 year period, 24 patients were treated for hunting related injuries at one Level 1 Trauma Center. Of those injuries, 16 were from falls and only 8 were firearm related. Another study in Ohio over a 10 year period found falls to be the cause of 50% of hunting related incidents, with firearms accounting for only 29%. Any discussion with regarding the mitigation of liability must include a deep dive on elevated structures and fall risks.

destroy any elevated structures that are not structurally sound, and to eliminate all “homemade DIY” elevated hunting structures. Just recently on social media, pictures were making the rounds of hunters glassing for deer from the top of grain bins, silos, barns, and other elevated structures and my only thought was how I hoped that the landowners had good liability waivers that identified which structures, if any, were allowed to be used by the hunters on the property.

As I stated at the very beginning of this discussion, I will always recommend Hunting Leases to clients with property suitable for this purpose. Numerous benefits for landowners accompany having honest hunters on the property and with the right documentation and preparation, very few drawbacks to go along with them.

If you choose to allow hunting from tree-stands or elevated structures on your property, you must take full stock of the variables involved in order to reduce the risk to your hunters, and your overall liability exposure. Typically, my advice to landowners is to remove and

Licensed in Texas, Colorado, and Kansas www.longilbert.com nate@nathanielgilbert.com

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