McTexLaw McPherson and Associates Real Estate Asset Protection Law Firm Attorney

Hunting Leases in Texas

If you think hunting is a redneck activity, and you connect being a redneck with a certain socio-economic status, then this paragraph is for you. It is easily one of the most expensive interests I've ever been involved with, coming in second only to law school tuition. First, there's the hunting license and gear. Then, there's the hunting lease. South Texas leases run from $7 to $17 per acre. In the Hill Country, leasing is usually done on a per gun basis with a range of $600 to $2,000 per hunter. The pick-up truck needs gas to and from the lease, and the body needs food and sleep. All told, the U. S. Fish and Wildlife Service estimates that hunters spend about $2.6 billion per year in Texas.

Texas really is like a whole other country, and hunting is no different. Unlike other states, Texas has very little federal or state owned public land available for public hunting. As you can see, then, private landowners control the supply of huntable land. But they don't control the supply of animals to hunt, at least not directly. Indigenous wild animals, such as white tailed deer, belong to the State of Texas, which is why the state can regulate the taking of game through its hunting laws.

Some Texas ranches that once used hunting lease income to supplement traditional ranching activities now make considerably more money off guided hunts than they could ever make off livestock. Many now manage for deer first, livestock second. With all this activity and profit, more landowners are tempted to lease more of their private land to more hunters. Landowners interested in doing so must understand their own personal liability in the event a hunter or their guest is injured on their land.

Liability of Hunting Lessors to Hunters and Their Guests

As a general rule, landowners are responsible for injuries to paying hunters which are caused by conditions that a reasonable inspection of the premises would reveal. The landowner should inspect the property on a regular basis, and warn hunters of dangerous conditions or make the dangerous condition safe. There are a few ways a landowner can limit this liability:

1. Charge either no fee or no more than four times the ad valorem taxes paid on the leased land. If so, the owner is liable only for gross negligence or for acts done with malicious intent or in bad faith. This is the same standard a landowner owes a trespasser. The down side to this option is, it makes it difficult for the landowner to make a profit from the hunting lease.

2. Charge more than four times the ad valorem taxes but purchase statutorily specified minimum amounts of liability insurance. If so, the owner's liability is again limited to the same standard the owner owes a trespasser, as in Example No. 1 above. The insurance required is $500,000 for each person, $1 million for each single occurrence of bodily injury or death, and $100,000 for each single occurrence of damage to or destruction of property. A landowner should make sure that hunting lease cash flow will allow the owner to pay the premium for such a policy.

3. Charge more than four times the ad valorem taxes but require the hunters to purchase the minimum amounts of liability insurance specified above, and assign the policy to the owner.

4. Charge more than four times the ad valorem taxes but obtain written waivers from the hunters releasing the landowners from liability. These waivers are established by statute and must meet five specific requirements.

These options come from Chapter 75 of the Texas Civil Practice and Remedies Code, which seems to me a strange place to put them. Wouldn't you expect them to be in the Property Code instead?

What Should the Lease Contain?

Technically, a hunting lease isn't a lease at all. A lease typically gives the lessee exclusive possession and control of the land. The hunting lease is really a license, which grants permission to do something on private land that otherwise wouldn't be allowed or would be illegal (e.g. trespassing). The lease may be oral or in writing, but if oral the landowner is missing out on some key abilities to limit its liability to the hunters.

Drafting a hunting lease is more art than science. Owners can tailor the lease to exacting specifications, using the hunters to help manage the game on the premises to ensure continued viability of the animals and creating the demand for hunting in the future. Here are a few ideas to consider in crafting a hunting lease that fits the landowner's goals:

Duration: Does this include scouting privileges, and some extra time before and after the season to set up and take down feeders, blinds, and such?

Game to Hunt: What game may be taken and when? Some leases deny quail and other hunting until the deer season closes.

Hunting Weapons/Hunting Method. This may be anything legal, to limits based on the type of game hunted. Weapons dictate method. It may be limited to blinds only, restrict shooting from a vehicle, allow stalking only during bow season, prohibit or limit dogs, and prohibit hunting at night altogether. Restrictions can be used as a means of game management by the owner.

Number of Hunters and Guests: If guests are allowed, they may have different restrictions on what game they can hunt and how much they can take. The lease can also provide whether they can hunt by themselves or require them to always be in the company of their host.

Order of Deer Taken: Many deer hunters only want trophy deer. However, to ensure an adequate number of does is harvested, the owner may require one or more does to be taken before a buck.

Harvesting Surplus Does: The buck-to-doe ratio in some areas of the state is larger than 1 to 10. Hunters hitting their limit is not solving this problem. The landowner may want to agree that if a certain number of doe's are not harvested by a given date, then guests of either the hunters or landowner may take a specified number before the end of the season.

Lease Price: It may be set per year, per day, per gun or per animal.

Payment Schedule: Lump sum payment in full before the season is the best way to get paid, from the landowner's perspective. But in order to get top dollar, the landowner may need to collect installments. The lease should provide this mechanism and also contemplate what happens if a hunter defaults after partial payment.

Blinds and feeders: Most Texas deer are taken from blinds.. The blinds may be provided by the owner or built by the hunter. Permission may be given or withheld to use the owner's blinds. Owners will need additional provisions if the hunters can build their own blinds and other improvements, for example, from liability, if any, for injuries incurred by hunters using the blinds, the fate of improvements not removed in a particular time frame, the duty of the landowner to fill and maintain feeders. Most importantly, the owner does not want a mechanics and materialmen's lien filed against his property for improvements.

There are many other provisions that can be included in hunting leases. The bottom line goal is to draft leases that are valuable for today's hunters as well as for tomorrow's, one that changes from time to time with changes in the game population. Help secure a legacy for our future hunters

For More Information

Additional information and research on hunting and hunting leases can be found at the Real Estate Center at Texas A&M and the Texas Dept. of Parks & Wildlife.

Please contact my office if you need any help with your hunting leases.