General Legal Considerations for Hunting "Leases"
Hunting ground is a precious commodity in Iowa. Hunters often approach landowners looking for ground to hunt. Whether to grant such permission and to whom to grant that permission is a complex decision. While many hunters in Iowa are knowledgeable about gun safety and their sport, every year there are new and beginning hunters. Having a well-drafted hunting lease or liability waiver can help ensure that both hunter and landowner understand their rights and obligations. It can also help ward off future problems. This fact sheet is designed to highlight basic issues landowners should consider when deciding whether to let someone hunt their ground and how to structure that relationship. It also reviews generally suggested hunting lease provisions. It is not designed to be a substitute for legal counsel.
Perhaps the most important issue landowners should consider in responding to requests to hunt on their property is whether they will be subjecting themselves to new liability for any injuries incurred by the visitors or because of the visitors.
In 2013, the Iowa legislature revised the Iowa Recreational Use Statute,[i] which encourages landowners to open their property to others for recreational uses (including hunting) to ensure that landowners are immune from liability related to recreational entrants. The statute expressly states that the landowner does not “assume responsibility for or incur liability for any injury” caused by an act or omission.[ii]
There are two big exceptions to this liability protection. First, this protection only applies where the landowner directly or indirectly invites others to use the land for recreational purposes without charge.[iii] If the landowner charges a fee (through a hunting lease, for example), the landowner will then owe a higher degree of care to ensure the property is safe for use. This duty includes ensuring the premises are safe and there are warnings about dangerous conditions. For example, a landowner may be liable for resulting injuries if a hunter steps in a large hole on the property and breaks his leg or accidentally discharges his gun if the landowner did not adequately warn the hunter about the risks. Although a waiver of liability may serve to offset this risk for adult hunters, it is important for landowners to discuss potential hunting leases with both their insurer and legal counsel to protect against unwanted lawsuits.
The second exception from liability protection is when the landowner willfully or maliciously fails “to guard or warn against a dangerous condition, use, structure, or activity.”[iv] Iowa Courts have not created a legal test for what constitutes willful or malicious action under this statute, but they have provided some guidance.[v] A person acts willfully or maliciously when it is proven they had an intent to harm or acted indifferently to a very obvious harm.[vi] This is why it may be a good idea to have a potential hunter sign a specific liability waiver acknowledging the unavoidable risks of hunting and uneven terrain, even if they are not being charged to hunt. If an accident or event occurs, this waiver would be used to show that the landowner attempted to inform the hunter of potential harms.
Hunting Lease Provisions
Most hunting leases are not actually leases at all, but licenses. A license, as opposed to a lease, is a private grant of right to use real property for a particular purpose.[vii] As such, a hunting lease offers contractual rights, not an estate in real property. In other words, the parties do not take on an actual landlord-tenant relationship, and the landowner is not subject to burdensome landlord-tenant statutory provisions. The parties’ relationships to each other are defined and bound by the terms of their contract.
Although an oral agreement for a term of one year or less would be legally enforceable, it is advisable to have a written hunting lease. It is also important to seek legal counsel to draft such a lease to ensure that the specific needs of the parties are met.
In general, however, a hunting lease should include the following provisions:
Clear Identity of the Parties
A hunting lease should clearly identify by name the persons entitled to hunt under the agreement. It should state whether the party to the lease can bring guests onto the property, if and how they can transfer the lease to another, and whether children under the age of 18 are allowed to hunt or accompany adult hunters on the land. Consider requiring a hunter to provide proof they have taken and passed a hunter’s safety course (even if not required by state law).
Description of the Property
Any hunting lease should specify the exact property upon which the party to the contract can hunt. It is advisable to include legal property descriptions, as well a map. The map should clearly identify nearby inhabited areas that will inform the hunter what shot directions should be avoided. The map should also mark known hazards, fences and/or ATV paths.
The hunting lease should clearly set forth the specific terms under which the party to the contract can hunt. Is the permission for a particular animal season only? Is it for rifle or bow hunting only? Are there particular firearms that are not allowed?[viii] Does it allow any legal hunting for a term of one year? Is it is multi-year contract? Perhaps a landowner will want to offer a multi-day hunting lease to a party or group. These are all possibilities, but the document should specify the exact terms of the permission granted.
The lease should also specify if the hunting party is also allowed to spend the night on the property or if they must leave by nightfall. Could the hunters bring an RV or 5th wheel on the property to park? If so, can the party have a bonfire outside? What is the maximum number of people who can sleep there? Can people who are not part of the hunting party spend the night? If there is a small cabin or residence, the same questions should be asked, and the lease should specify what behavior and use is allowed and not allowed.
Termination and Options to Renew Provisions
The contract should specify the particular grounds and the manner under which the landowner can terminate the contract, including for misuse or dangerous use of the property. The clause should state how the termination notice will be communicated. The contract should also specify whether the contract will automatically renew or terminate on a particular date.
Waiver of Liability
As discussed above, liability should be a prime concern for landowners contemplating a hunting lease. Landowners should acquire a waiver of liability from the hunters as part of the lease. Through a properly drafted waiver, the landowner should be able to obtain the same level of liability protection offered by the Iowa Recreational Use Statute as to all adult hunters. Such a waiver would not provide protection, however, for children under 18. Landowners are advised to seek legal counsel to draft a legally enforceable waiver. They are also advised to discuss any hunting lease in advance with their insurer to understand what damages insurance may cover if an event were to occur.
Landowners also may want to include an indemnification clause. This is when the hunters agree to assume the risk and pay any damages caused to others by the hunter or the hunter’s activity on the property. This is important if the landowner becomes involved in a lawsuit where a third party was injured or harmed. It also can help reinforce the hunters’ responsibilities and encourage safe hunting practices.
Studies have found that tree stands lead to more injuries than firearms in a hunting context.[ix] Providing a tree stand or elevated hunting platform is increasing the risk that the hunter or guest will become injured from a fall or improperly maintained stand. If there is a tree stand, it needs to meet the Treestand Manufacturer’s Association’s safety standards,[x] and the hunter should be required to wear a safety harness at all times. If the hunter is providing the stand, the stand should be installed in summer when it is easier to identify a dead tree. A dead tree should never be used to support an elevated hunting platform.
A hunting lease should include the terms of payment required under the lease, including the amount, the due date, the manner in which payment is to be made, and the remedy in the event of nonpayment. It is best practice to require payment prior to the hunting period, usually well in advance so that an alternative party can be found if payment is not made.
As noted above, Iowa hunting land is a precious commodity. Through a well-drafted hunting lease, landowners can share their resource with others and, in exchange, receive a monetary benefit. They should remember, however, that any such agreement should be carefully drafted and cleared with their insurers. Failing to take such measures could place them in a liability landmine.
[i] Iowa Chapter 461C.
[ii] Iowa Code § 461C.4(4).
[iii] Iowa Code § 461C.6(2).
[iv] Iowa Code §461C.6(1).
[v] Sallee v. Stewart, 827 N.W.2d 128, 153-54 (Iowa 2013); Bird v. Econ. Brick Homes, Inc., 498 N.W.2d 408, 409-10 (Iowa 1993).
[vi] Bird v. Econ. Brick Homes, Inc., 498 N.W.2d 408, 410 (Iowa 1993) quoting Burnett v. City of Adrian, 326 N.W.2d 810 ( Mich. 1982).
[vii][vii] Restatement (Third) of Property (Servitudes) § 1.2, cmt e (2000).
[viii] Strong, Jared. New Hunting Law will Allow AR-15s for Deer in January. June 17, 2022, https://iowacapitaldispatch.com/2022/06/17/new-hunting-law-will-allow-ar-15s-for-deer-in-january/ (last accessed Dec. 28, 2022).
[ix] Crockett A, Stawicki SP, et al. Tree Stands, Not Guns, Are The Midwestern Hunter's Most Dangerous Weapon. Am Surg. 2010 Sep;76(9):1006-10; Halanski MA, Corden TE. Wisconsin firearm deer hunting season: injuries at a level I trauma center, 1999-2004. Wis. Med J. 2008 Feb;107(1):20-4.
[x] Current Standards, Treestand Manufacturing Assoc., https://www.tmastands.com/members-only/current-standards/ (last accessed Dec. 28, 2022).
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