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Property Matters
What documentation should landowners have when leasing out their property for recreational use?
By Tiffany Dowell Lashmet
As cooler temps creep into Texas, many landowners lease out their land
for recreational use. But what type of documentation should they have?
Landowners want to allow their friends, family, or the public to enter
their property for activities like hunting, fishing, or swimming, but
they also want to protect themselves against liability. For hunting, I
recommend three documents be signed by and collected from each person
entering the property.
Hunting
Lease
All landowners should require a hunting lease be signed by anyone
coming onto the property. For example, if a landowner leases his land to
Bob, who will be bringing his brother, Bill, with him, then the
landowner should obtain signed hunting leases from both Bob and Bill.
Why do they both need to sign a lease? Unless a person signs the lease,
he or she is not bound by its terms. For this reason, it is prudent to
require everyone who is entering the property to sign a lease agreement.
Further, the lease agreement should provide that additional persons may
only enter the property with the written consent of the landowner,
thereby giving the landowner notice that another person may be coming
and the chance to obtain the necessary documents from the additional
party. Finally, as you might have gathered by requiring signatures, it
is critical that all hunting leases be in writing. I always recommend
that any lease agreement be reviewed by a licensed attorney. Spending
money up front to get a good hunting lease form, which can likely be
used for years to come, is well worth it and will likely save money in
the long run if it helps to avoid or settle a dispute.
Liability Waiver
I always recommend that hunters or other recreational guests on the
property sign a waiver of liability. Texas courts will generally enforce
these liability waivers when executed by an adult. Courts are far less
likely to enforce this type of waiver when signed by a parent purporting
to waive liability on behalf of a minor. In order to be enforceable in
Texas, the waiver must meet the requirements of the express negligence
doctrine and must be conspicuous. This requires including certain
language in the waiver and means that it cannot be hidden in the fine
print of a larger document, like a hunting lease. Again, I recommend
landowners consult with an attorney to draft a valid liability waiver
that can be used repeatedly in their operation.
Texas Agritourism Act Waiver
The Texas Agritourism Act is a relatively new statute, passed in 2015,
which provides that agritourism entities are not liable for injuries to
persons engaged in a recreational or educational activity on the
property, so long as a sign is posted or specific release language is
signed.
All farms and ranches are likely considered an “agritourism entity” as
that is defined simply as someone allowing a recreational or educational
activity (hunting included) on land that is suitable for growing crops
or raising livestock. Because of these broad protections, I advise
landowners to obtain the signed Agritourism Act Waiver from each person
entering the property. The waiver must be signed before the activity, by
the participant or their parent or legal guardian, printed in 10-point
bold font, and separate from any other agreement between the parties
except a different warning, consent, or assumption of risk. This means
the language should not be just added to your traditional hunting lease.
Instead, I recommend it be printed on a separate page for the hunters to
sign. The language must be as follows:
AGREEMENT AND WARNING: I UNDERSTAND AND ACKNOWLEDGE THAT AN AGRITOURISM ENTITY IS NOT LIABLE FOR ANY INJURY TO OR DEATH OF AN AGRITOURISM PARTICIPANT RESULTING FROM AGRITOURISM ACTIVITIES. I UNDERSTAND THAT I HAVE ACCEPTED ALL RISK OF INJURY, DEATH, PROPERTY DAMAGE, AND OTHER LOSS THAT MAY RESULT FROM AGRITOURISM ACTIVITIES.
One important note here is that under
the Agritourism Act, a landowner can choose to either obtain this signed
language or hang a similar sign. Doing either will obtain the act’s
protections. The one scenario where there appears to be an added benefit
of obtaining the signed waiver is if there will be minor children (under
18) on the property. As noted above, courts generally do not enforce
general liability waivers signed on behalf of a minor. However, the
language of the Agritourism Act’s signed waiver section expressly states
that it may be signed by a parent, guardian, or managing conservator on
behalf of a minor. This appears to be strong indication of legislative
intent to allow such waivers to be enforced. Thus, if you are letting
minors on your property for a recreational or educational purpose, the
signed waiver is likely an important document to have on
file.TBJ
This article was originally published on the Texas Agriculture Law
Blog and has been edited and reprinted with permission.
TIFFANY DOWELL LASHMET
is an assistant professor and extension specialist at Texas A&M
AgriLife Extension and can be reached via her website agrilife.org/texasaglaw.
