With the warming weather melting away this year's snowfall, Spring feels like it is right around the corner. Farmers are not the only ones with the spring-time itch as they impatiently wait to get into the fields, as turkey hunters have had April 15th (opening day) circled since they bought their 2020 calendars. Throughout the state and all over the nation, yearly hunting leases are signed for deer, turkey, and other types of hunting. While these leases can provide landowners a nice payday, many landowners do not think about the liability risk that they have created with another individual coming onto their land.
However, once landowners realize some of the potential negative implications that can arise from a hunting lease, it causes many landowners to stop leasing their land altogether because of fear from a potential lawsuit.
You are most likely wondering what type of duty you owe the hunters who are coming onto your property. It all depends on what type of relationship you have with the hunter. If the hunter is paying you for the privilege to hunt your land, the hunter would be considered an invitee. This means you would owe a higher duty of care to this hunter than to someone who is trespassing across your property because you have knowledge they are there. Minnesota case law states that a landowner is not liable to his invitee for physical harms caused by a danger or a condition that is known or obvious, unless the landowner should anticipate the harm. See Barber v. Dill, 531 N.W.2d 493 (Minn. 1995).
Basically, that means that you do not have to tell the hunter about the cliff with a 200 foot drop off over the ravine, the low hanging branch that is clearly visible, or about your farm pond that is 150 feet by 75 feet, as these are all considered pretty obvious; however, you will have to tell hunters about dangers that a reasonable inspection would identify (wells, sinkholes, old deer stands, and things of this nature). The underlying rule is that “no one needs notice of what he knows or reasonably may be expected to know."
If you decide to lease your property, at a minimum, you need a lease that has a hold harmless clause that protects you. The lease should have a detailed section for release, indemnification, and liability waiver, which is thorough to cover all the areas where there could be a potential problem.
Further, having a well-constructed lease not only protects a landowner, but it can allow a landowner to control the behavior and actions of the hunters while they are on his or her property, whether this has to do with safety precautions, restrictions on what hunters can do on the land (i.e. baiting sites, food plots, etc.), control if hunters can bring guests, outline where exactly on the land is considered a hunting area, and many other restrictions that landowners do not usually think about.
On top of the lease, you could require the hunter to have you named as an insured party on an insurance policy or you can use some of the funds from the lease to purchase the policy yourself.
Drafting a hunting lease can be a complex process. Our attorneys are here to discuss the opportunity and to help you protect yourself.
For more information on farm law, estate planning, elder law, business, and real estate, subscribe to our quarterly newsletter.