Disclaimer: The author is a wildlife professor and not an attorney. This publication is intended to educate readers about liability issues associated with recreational hunting occurring on their properties. Before executing a hunting lease agreement, you should consult with an attorney.
In Mississippi, the responsibility of a landowner to protect visitors against dangers or hazards on private property is determined in part by the legal classification of the person who is on your property. The legal status of an individual on your land can be trespasser, licensee, or business invitee.
You have very little responsibility to trespassers on your private property, but you should not intentionally or willfully harm them. Trespassers have no legal permission or basis for being on the land, so you do not have a duty to ensure their safety on the property. If you are having trouble with a trespasser, try to take a digital photograph of the license plate of their vehicle while they are on your property. Send the photograph to your local sheriff’s department or a conservation officer with the Mississippi Department of Wildlife, Fisheries, and Parks (1-800-BE SMART) with a message that the individual is trespassing on your property. Complete a trespass affidavit with your local law enforcement personnel for the arrest of trespassers on your property.
If you know the violator’s name and contact information, write them a letter informing them that they are to remain off your property and that you will pursue enforcement actions and legal fines for trespassing if they come back on your property. Trespass statues normally have increasingly severe penalties and potential jail time for second and third offenses, and in instances where the landowner can demonstrate prior warnings to a trespasser.
Avoid escalating a confrontation directly with a trespasser. Especially during hunting season, these individuals may be carrying guns. It is safer to let local law enforcement personnel deal directly with trespassers and wildlife poachers on your land.
You are not required to post “no trespassing” signs on your land, but it is highly advisable. Signs will help define your property boundaries and will help eliminate unintentional trespassing on your land from hunters who may inadvertently cross your property line.
The next level of legal classification of an individual on your land is a licensee. A licensee is someone you grant permission to be on the property; however, you receive no direct benefit from the arrangement. For example, your neighbor asks if he can fish in your pond and you allow him to do so. You receive no compensation or direct benefit in this occurrence. Therefore, you do not have a heightened responsibility for the guest’s safety while on the property.
Even so, you should warn your guest of any unforeseen dangers on the property, such as Ferdinand the bull in the fenced pasture adjacent to the pond. In addition, your active negligence as a landowner cannot harm the quest. In other words, you should not intentionally let ornery Ferdinand into the pasture adjacent to the pond while your neighbor is fishing.
The last classification is a business invitee. This is a person who pays for access to the property and should be given special consideration to ensure that their experience on your land is safe. Some examples include:
These guests are business invitees, and the landowner benefits under this arrangement.
Do you need to make your property “perfectly” safe for these guests? The short answer is no. However, it is wise to do what is reasonable and prudent to make the property safe. If there are unforeseen hazards on the property—an open cistern or a bridge that is in need of repair—warn your guests to avoid these potential hazards. Better yet, remove or repair the hazards. Document your actions to make the property safe, and provide written communication to your guests about safety issues on your land. Keep these documents in a safe place for use and reference in the future.
One option for income diversification on your land is a recreational hunting lease. A hunting lease is a legal arrangement or contract whereby a landowner grants access to his or her property for recreational hunting for a certain period of time in exchange for financial compensation or services. Leasing land access for recreational hunting is a non-intensive way to diversify income on your property. In addition, offering a hunting lease to a group of law-abiding hunters can help absentee landowners prevent trespassing and wildlife poaching.
In Mississippi, the type of land cover on your land is important to potential hunting lessees. Land tracts that are dominated by forests, particularly mature hardwood forests or mixed pine hardwood forests, are more often sought after for hunting properties. These forests provide superb cover and food (acorns, hickory nuts, beechnuts, and fleshy fruits) for white-tailed deer, turkey, squirrel species, and quail. Lands containing wetlands or riparian areas (land next to water and streams) and bottomland hardwood forests are beneficial to many wildlife species, including waterfowl, and these properties command higher lease prices.
Enhancements on your land will increase the price you can charge for a hunting lease. Roads or trails on the property are beneficial because they allow hunters to move more freely over the tract. A secondary benefit is reduced motorized travel over the rest of the property and less chance of visitor accidents and property damage. Limiting vehicular traffic to roads and trails can also prevent erosion issues and potential damage to trees and topsoil.
Often, hunting lessees are allowed to erect hunting stands and plant vegetation for wildlife. However, if the landowner provides these amenities to potentially higher paying clients, prices for these selective leases increase considerably. Providing lodging on properties to allow clients to stay for extended times is a value-added amenity that increases the price hunting lessees will pay. Amenities such as an outside fire pit, firewood, bathroom facilities, clotheslines, trash cans, and potable water are conveniences that hunters are seeking and willing to pay extra for. You may not want to provide all of the above items, but doing so will increase the value of the land.
Hunting leases should be well written and clearly identify the parties in the lease agreement. In Mississippi, unincorporated groups of individuals are not legally recognized. Therefore, you should consider requiring hunting associations to become incorporated by contacting the Mississippi secretary of state’s office (https://www.sos.ms.gov ) and completing required documentation. As an example, if the “president” of the ABC hunting club signs a lease representing an unincorporated club, the landowner arguably only has an agreement with the club president and not the entire group.
Requiring a club to become a legally incorporated entity addresses issues of authority. Another option for the hunting club is to organize as a not-for-profit entity, which is a simpler process than a for-profit arrangement. As a last consideration, if the club has no formal entity designation, you should require all members of the hunting group to sign the lease.
In a hunting lease, game species to be hunted should be listed (for example, white-tailed deer, Odocoileus virginianus) and any restrictions to the harvest under legal quotas established by state authorities. Also list the methods of harvest allowed (for example, guns and archery or archery only). Always include a legal description of your property in the lease agreement. It is often helpful to include maps of your property to help lessees clearly understand the property boundaries. This can alleviate unintentional trespassing onto neighboring properties. Identify the effective dates of the lease; these can be seasonal, annual, or multi-year arrangements depending on your preference. Some other considerations for your lease agreement include these:
In addition to having a well-composed written hunting lease that is specifically tied to your property, it is recommended that landowners have invitees and guests sign liability waivers before allowing recreational access. By signing a waiver, the lessee or guest is acknowledging the risks involved with being on the property. A waiver also states that the signee holds the landowner harmless in case of injury, death, or damage to personal belongings when the lessee or guest is on the premises.
Owners should purchase liability insurance as an added precaution in the event a hunter is injured while on the property. If litigation occurs, insurance may cover attorney fees and court costs in defense of the landowner. Insurance for hunting lease liability coverage is readily available and affordable. It is also a good idea to require the hunting group to have accident liability insurance and to name the landowner as an additional insured party on their policy. Require proof or certification of insurance coverage where you are shown as an additional insured party.
As an added protective measure, you may consider becoming a business entity, such as a limited liability corporation (LLC), to reduce potential liability exposure. An LLC is a legal entity that offers liability protection to the owner(s) of the LLC. It is treated as a separate “person” in the eyes of the law. In the event of a judgment, a plaintiff might take the assets from the LLC, but not the person (you) who owns the LLC. The owner with beneficial rights in an LLC is a member with interest based on percentages; therefore, a single-person LLC would have 100 percent interest therein, while a husband and wife might be 50/50.
In addition, a landowner can form one LLC for the land and a second, separate LLC for the hunting lease. By offering the hunting lease through an LLC that, in turn, leases the land for hunting from the land-holding LLC, the land is not legally tied to the leasing arrangement. In the event that a legal judgment is won against the land-leasing LLC that offers the hunting lease, the land is not subject to a judgment since it is held within a separate LLC or business entity. Many landowners use LLCs in this manner to reduce risk to their assets; you should discuss this with your attorney. You should follow corporate formalities in operating under an LLC (members should not comingle personal funds with funds from the LLC, and owners should file an online annual report with the Mississippi secretary of state’s office).
The following sample hunting lease agreement is for educational purposes only. It is important to check with an attorney before writing and signing a binding legal agreement. You may want your lease to be more detailed or include more requirements to fit your property and interests. [Example information is in brackets.]
This Lease Agreement (the Lease), entered into as of the [day] of [month], [year], by and between [Lessor’s name], hereinafter referred to as Lessor, and [Lessee’s name] (indicate whether an individual, partnership, corporation, or unincorporated association), hereinafter referred to as Lessee.
The parties agree as follows:
IN WITNESS WHEREOF, the parties have hereunto caused this Agreement to be properly executed as of this the [day] day of [month], [year].
The information given here is for educational purposes only. References to commercial products, trade names, or suppliers are made with the understanding that no endorsement is implied and that no discrimination against other products or suppliers is intended.
Publication 3416 (POD-01-23)
By Daryl Jones, PhD, Extension Professor, Wildlife, Fisheries, and Aquaculture.