Hunting Leases in Arkansas Hunting Leases in Arkansas Increase in by crawfordhanes

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									                                                           Hunting Leases in
        Hunting Leases in                                     Arkansas
           Arkansas
                                                   Increase in hunting leases on
                                                   agricultural land in Arkansas & around
                                                   the country
                                                   Good source of extra income to the
University of Arkansas                             landowner
Department of Agricultural Economics and           Also a good source of additional liability
Agribusiness
                                                   if not properly approached




   Basics of Hunting Leases                                   The Contract
                                                   Any hunting lease (the basic contract)
  Hunting leases are essentially contracts         should contain the following:
  between two parties                                Landowner’s name & address
  Hunting and fish and game laws in                  Hunter’s name & address
                                                     Who is entitled to enter the landowner’s
  Arkansas should also be consulted                  land for the purpose of hunting
  Basics of contract and property law are              List the name of the hunter
  assumed                                              List the name of the other allowed guests
                                                       List of other agents, employees, invitees,
                                                       or visitors




              The Contract                                    The Contract

                                                   Rent:
  Property description
                                                     How is payment to be made
    Specific legal description, including county
    and state                                        $ for the entire period and payment due
    Might want to attach a map                       date
  Duration of the lease                              $ for each week and payment due date
    Beginning and ending date that hunter is         $ for each month and payment due
    allowed on the property                          date, or
                                                     $ for each person and payment due
                                                     date
           The Contract                                  The Contract

Security deposit                              Is the hunter required to maintain
  Is one required?
                                              insurance covering his/her use of the
                                              property?
  How much?
                                                If yes, what are limits for bodily injury and
  When is it due?                               property damage that the landowner will
Restrictions on use                             require?
  Is hunting restricted to certain game?        If yes, the hunter should provide the
                                                Landowner with a copy of the policy and/or
  Is hunting restricted to certain seasons?     the name, address & telephone number of
                                                the insurance company




           The Contract                               General Policies

Or, is the landowner carrying the             Consider including “general policies” or
insurance?                                    “general rules” in the hunting lease:
  If so, lease rental amounts should            Safety – expectations of conduct –
  incorporate insurance fees                    requirements for attending hunting
                                                safety course
                                                Good neighbor relations – restrictions
Signatures of the parties are required          on placement of stands – settling
                                                disputes with neighbors




                                               Include “Do-Nots” in the
   Have These in the File!
                                                        Lease
                                              Don’t damage trees, crops, buildings, fences,
For all officers, agents and members of       roads, or improvements
a hunting club that is leasing the            Don’t feed the animals!
property, have the following:                 Don’t cut growing timber
  Name                                        Don’t build permanent structures
  Address                                     Don’t sublease
  Driver’s license number                     Don’t litter
  Date of birth                               Don’t leave the gate open
  Contact information                         Don’t break hunting, fishing or game laws
                                              Others…
    Include “Do-s” in the                        Each Hunting Lease is
           Lease:                                      Different
Report law violations to the landowner
                                              Year-round leases
Restrict use of vehicles from areas that
shouldn’t be disturbed                        Limited duration leases
Restrict release or stocking of animals       Day hunting leases
not sanctioned by state law or the
landowner                                     Guided hunts
Communicate frequently with the               Leases allowing general recreational
landowner                                     access
Allow access at all times to landowner
and his/her employees and agents.




       Before Executing a                                      Also….
         Hunting Lease
Identify what your goals are for the          Identify any special concerns you might
property                                      have & incorporate them into the lease
Identify whether adequate game                Determine how you will monitor wildlife
populations exist on the property             populations on the property
Interview potential lessees                   Set up an accurate recordkeeping
                                              system for your leases
Determine your price
Develop your written agreement




    Other Provisions of a                           Additional Contract
           Lease                                       Concerns…
  Is the hunter’s use exclusive?            Avoid informal arrangements with users of your
                                            property
  What are the hunter’s requirements vis-
  à-vis adjoining landowners or others
  using the property?                       Contracts should contain indemnification
                                            agreements so that the landowner can be
  Cancellation terms                        indemnified for any bodily injuries or property
    With cause (how is “cause” defined)     damage the user may cause while using the
                                            property (covering fees & expenses)
    Without cause – usually requires
    30/60 days written notice by either
    party with proration of lease rental
       Additional Contract
                                                                Insurance
          Concerns…
  Indemnifications only work if the party
  indemnifying you is solvent!                   The landowner should seek out liability
                                                 coverage for hunting and fishing
  Anyone injured by the user is not bound
  by the indemnification agreement – this        activities on private land
  is only between you as landowner and           Typically, hunting lease activities will be
  the recreational user                          covered under an endorsement to your
                                                 general liability policy
                                                 Covered as an “incidental business
                                                 pursuit”




      Additional Insurance
                                                 Exclusions from Coverage
          Concerns…
                                                 Read your insurance policy careful and
“Incidental business pursuits” may be tied to    engage in dialogue with your insurance
gross receipts for the activity                  broker
Gross receipts for the activity may be           Some policies may have exclusions from
limited in amount                                coverage for certain types of injuries
Consult with your insurance provider             occurring on the property
May have to upgrade your existing policy,        Some excluded injuries may be common in
seek out endorsements for recreational           recreational pursuits
activities, or seek out insurance carried by     May need excess coverage or umbrella policy
specialized brokers
                                                 Read carefully and ask questions!
May have to self insure




          User Insurance                          Common Sense Measures

Consider requiring the user (lessee) to         If you require the user (lessee) to carry
                                                insurance, employ some common sense
furnish their own liability coverage            measures:
  Particularly applies when dealing with          Keep a copy of the user’s insurance policy and
  hunting or fishing clubs                        make sure the policy is current
                                                  Read the policy and make sure it covers the
  User might be able to purchase                  activities contemplated by the lease
  insurance only for the period they use          Make sure the policy is with a reputable firm
  your property                                   and financially solvent insurance company
                                                  Make sure you are the named insured
    More Common Sense…                                             Releases

  Make sure the users follow the terms,          Consider having all users also sign a
  conditions and provisions of the policy
                                                 release
  Make sure the policy indemnifies you if a
  judgment is obtained against you               Releases the landowner from legal
  Make sure the policy covers your legal fees    liability for injuries the user may receive
  and expenses if you are sued                   while on your property
  Make sure the policy specifically identifies   This is also a contract and requires
  the land where the hunting/fishing will take
  place                                          consideration and a meeting of the minds
  Make sure the users confine their activities   in order to be upheld
  to the location in the policy




         Risk Management                                 Risk Management
                                                 Conduct routine safety audits
 Risk management measures will lessen            Remove potentially dangerous objects
 your liability exposure                         Fill in abandoned wells and holes
 Don’t assume all users have common              Fence of dangerous areas
 sense                                           Post warning signs
                                                 Make sure all hunters wear appropriate
 Don’t assume that users will be                 clothing and are aware of other hunters
 cognizant of obvious dangers on the             that might be on the property
 property                                        Keep livestock separate from users




    More Risk Management                              A Word about Alcohol
Deal with “attractive nuisances” such as
barns, ponds, machinery…require children         Alcohol (and for that matter drug usage)
be supervised at all times                       and hunting DON’T mix!
Revisit the “do-s” and “don’ts”…make a list
and give it to all users…make sure they          Don’t allow it!
read your list                                   Make sure all contracts specifically deal
Screen your employees and make sure              with this issue!
they know their responsibilities
First aid plans are necessary as is training
in emergency response
      Why You Care about
                                                           Trespassers
           Liability
 As a landowner, you may be held liable       Someone who enters or remains on your land
 for injuries for those coming onto your      without your consent
 property                                       Someone who hunts on your land without your
                                                consent
 Entrants onto your land fall into
                                                Someone who enters upon your land to commit
 categories:                                    a crime
   Trespasser                                   At common law, the duty of care to these
   Invitee                                      individuals is slight, but not non-existent
   Licensee                                     Duty of care increases if the trespasser is a
                                                child




            Trespassers                                      Licensees

You can’t intentionally injure a trespasser    Licensees are those entering upon your
                                               land with your permission and for their
You can’t use more force than is
                                               own purposes or business interests
necessary to remove a trespasser
                                                 Social guests
You can’t recklessly endanger a
trespasser                                       Unsolicited sales persons
                                                 Hunters permitted to hunt without paying
Child trespassers are owed a higher duty
                                                 fees to the landowner
of care




              Licensees                                        Invitees
                                              Invitees are those coming onto the land
Duty of care is greater than that owed to     at the express or implied invitation of
trespassers                                   the landowner
Can’t intentionally injure a licensee or      Invitees come onto the land for the
recklessly endanger a licensee                landowner’s financial benefit
Should take steps to warn the licensee of     Owed greatest duty of care
dangers conditions on the land                Covers those charged a fee for hunting
                                              or other recreational use of the land
               Invitees                      Arkansas’ Recreational Use
                                                      Statute
Invitees count on the landowner taking        Arkansas Code Ann § 18-11-301 et seq
reasonable steps to ensure the
                                              All recreational use statutes are
premises are safe
                                              designed to encourage landowners to
Should warn of existing and known             make areas available to the public for
dangers & eliminate any dangers you           recreational purposes and to limit the
can                                           landowners liability to the user for
                                              injuries associated with that use




 Arkansas Statute, cont…                        Arkansas Statute, cont…
                                             The statute creates a protection to the
Any landowner who directly or indirectly     landowner for permitting recreational use
invites or permits anyone to use his/her     land
land for recreational purposes does not      Owners don’t assume responsibility for or
extend any assurance that the lands or       incur liability for injuries to persons or
premises are safe for any purpose            property caused by the user (hunter)
                                             Liability is not incurred by the landowner for
Permission doesn’t confer the status of      natural or artificial conditions, structures,
“invitee” or “licensee” to whom a duty of    personal property on the land
care is owed                                 If you charge a fee, your immunity may be
                                             affected under the statute




 Arkansas Statute, cont…                        Arkansas Statute, cont…

If you maliciously fail to guard or warn      “Charges” includes admission fees for
against ultrahazardous conditions or          permission to go upon or use the land,
activities you may still be liable            but does not include:
Users of the land are still required to         Sharing of game, fish or products
exercise care in their use of the land and      Contributions in kind, services or cash
in their activities                             paid to reduce or offset costs and
Landowner’s immunity from liability exists      eliminate losses from the use
when you permit use of the land “without        Revenue from a business enterprise
charge” to the user                             adjacent to the recreational site
   Arkansas Statute, cont…                         Presentation References

Since charging for recreational use of          University of Arkansas Department of
land may affect your immunity from              Agricultural Economics and Agribusiness;
                                                Fayetteville, AR
liability under the recreational use
                                                  Janie Hipp; 217 AA Agriculture; jhipp@uark.edu
statute, it is essential for the landowner
to explore other means of limiting liability,
such as through:
  Agreements between the parties
  Insurance coverage




          Sources for More
            Information
Arkansas Game and Fish Commission
  http://www.agfc.state.ar.us/
U.S. Fish and Wildlife Service
  http://www.fws.gov/
Arkansas Natural
  http://www.arnatural.org
OSU Extension
  http://pearl.agcomm.okstate.edu/wildlife/

								
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