________________________________________  (hereinafter referred to as Guest) GUEST has been given permission to come upon the
_________________________________________RANCH located in
____________________________________ COUNTY, TEXAS (hereinafter referred to as the Owners Premises) operated by ________________________________________ (hereinafter referred to as "OWNER").

Guests acknowledges and understand that no warranty, either express or implied, is made by the Owner as to the condition of the Owners Premises. This document is to warn Guest that dangerous conditions, risks and hazards do exist on the owners premises. Guest acknowledges that  hunting and other activities on rural property such as the Owners Premises does have unknown hazards and risks and can result in injury or property damage to the person/persons involved in these activities. The many possibilities and sources of injury or damage are acknowledged by GUESTS, and he/she comes on the Owners Premises with full knowledge that hazards and risks exist.

** NOTE,, This document has been edited and not in it's original form.

 LEASE AGREEMENT

Note:  The following information has been provided by the Real Estate Center at Texas A∓M University (original publisher) with contributions from the late Dean Patton, an attorney with Morrill, Patton and Bauer in Beeville, Texas.  Patton is the author of  "Agricultural, Hunting and Grazing Leases,"  13th Annual Advanced Real Estate Law Course, 1991, sponsored by the State Bar of Texas Professional Development Program.

Author:  Judon Fambrough*

*Attorney at Law and Senior Lecturer, the Real Estate Center and Department of Agriculture Economics, Texas A & M University.

Deer hunting is big business in Texas.   Hunting leases continue to be a constant source of revenue for many Texas landowners following cycles in the agriculture and petroleum sectors. 

Texas landowners hold a unique position.  Unlike many other states, Texas has little federally or state-owned land available for public hunting. Thus, the private landowners control the major supply of  land available for hunting. This position affords Texas landowners a unique source of income.

Compliance with Game Laws and Record Keeping

Obviously, the hunter must comply with state hunting laws.  The agreement should state this so that a game law violation breaches the contract.

Until September 1, 1997, hunters had to complete a daily hunting ledger required by Section 43.0485 of the Texas Parks ∓ Wildlife Code.  The name, address and hunting license number of each hunter was entered along with the number and type of game harvested each day.  The ledger is now optional with the landowner.

In addition to the ledger, landowners may initiate a sign-in and sign-out sheet posted at the entrance to the property.  Upon entering the property, the landowner may then determine who is on the property and where.

Finally, the landowner may want other pertinent information concerning each harvested deer. The landowner may require the hunter to:

• measure and record the spread and number of antler tines;
• record the weight;
• furnished photographs of the front, back and sides of each buck;
• save and provide to the landowner the lower jaw or one side of the lower jaw; and
• identify on a map the approximate location where each deer was taken.

Imparting "No Trespass" Notice

Texas landowners wishing to prevent trespassing and poaching should be aware of the methods described by the statutes.  The Texas Penal Code (Section 30.05) states that a person commits criminal trespass in one of two ways.  First, after receiving notice that entry is forbidden, a person enters and remains on the property without effective consent.  Second, a person enters or remains on the property after receiving notice to depart.

Entry is defined as the intrusion of a person's entire body.

The statute describes five (5) ways that landowners may impart notice that entry is forbidden.  These include:

  1) oral or written communication by the owner or agent;
  2) fencing or other enclosures obviously designed to exclude intruders or to
      contain livestock;
  3) signs posted at places reasonably likely to come to the attention of an intruder;
  4) visible presence of crops grown for human consumption that are under cultivation,
       in the process of being harvested or marketable if already harvested; and
  5) identifying purple paint marks on trees or posts.

The statute elaborates on the last measure added September 1, 1997.   The purple paint mark must be a minimum of one inch wide and eight inches long, placed three to five feet above the ground and readily visible to anyone approaching the property.  The marks must be placed every 100 feet on forested land and every 1,000 feet on all other land.  Forest land means land on which trees are potentially valuable for timber products.

The statute excludes fire fighters and emergency medical services personnel while discharging their official duties in an emergency.

A violation of the statute is a Class B misdemeanor unless the intruder carries a deadly weapon.  Then, the violation is a Class A misdemeanor.  Class A misdemeanors are punishable by a fine not to exceed $4,000, confinement in jail for no longer that one year in jail or both.  Class B misdemeanors are punishable by a fine not to exceed $2,000, confinement in jail for no longer than 180 days or both.

Landowners who wish to report poachers may call the Texas Parks ∓ Wildlife Department at 1-800-792-1112.

Landowner's Liability to Hunters

A landowner's liability (or responsibility) for the safety of anyone entering the property depends on the legal classification of the person at the time of injury. There are four categories: an invitee, a licensee, a trespasser and children under the attractive nuisance doctrine. Theoretically, a hunter could fit in any one of these.

Fee-paying hunters are classified as invitee's. Landowners have a legal duty to keep the premises safe for the invitee's protection. The landowner must give the fee-paying hunter adequate and timely notice of concealed or latent perils (dangerous conditions) that are personally known or that a reasonable inspection would reveal. Injuries caused by dangerous conditions that are apparent or that could be revealed by reasonable inspection are the landowner's responsibility, but comparative negligence may lessen the liability.

Non-paying hunters with permission to hunt are classified as licensees. Landowners have a legal duty to warn licensees of known dangerous conditions or to make the conditions reasonably safe. No inspection is required.

Hunters who enter without permission are classified as trespassers. The landowner owes them no legal duty. The law prohibits the landowner from willfully or wantonly injuring a trespasser except in self-defense or when protecting property. The landowner is liable for gross negligence or for acts done with malicious intent or in bad faith.

Trespassing children are protected by the attractive nuisance doctrine. An attractive nuisance exists when: the child is too young to appreciate or realize a dangerous condition; the location of the condition is one that the landowner knew or should have known children frequent; and the utility of maintaining the condition is slight compared to the probability of injury to children. The landowner may avoid liability if any one of these conditions is missing.

According to present revisions to Chapter 75 of the Texas Civil Practices and Remedies Code, agricultural landowners owe a recreational guest (hunter) no greater degree of care than is owed a trespasser if there is no charge for entry.

If there is a charge, the trespassory degree of care remains until the total charges collected during the previous calendar year exceed four times the total amount of ad valorem taxes imposed on the premises during the same period.  Prior to September 1, 1997, the limit on charges was twice the amount of the ad valorem taxes.

However, even if the fee limit is exceeded, the trespassory degree of care continues if the landowner has specific amounts of liability insurance coverage in effect.  These amounts are $500,000 for each person, $1 million for each single occurrence of bodily injury or death and $100,000 for each single occurrence for injury to or destruction of property.

Landowners achieve two advantages by having the minimum amounts of liability insurance.  First, the trespassory degree of care continues to hunters when charges exceed four times the amount of ad valorem taxes.  Second, the stipulated amounts serve to cap the landowners liability if sued for an act or omission relating to the premises.

If the fee limit is exceeded without the minimum liability coverage in effect, then the landowner faces the degree of care owed to either an invitee or licensee, whichever the case may be.  The amount charged has no effect on the attractive nuisance doctrine.

The hunting lease becomes a two-edged sword. Landowners receive an economic benefit for allowing entry to hunt. At the same time, they may bear the risk and responsibility for the hunter's safety.

What, then, are the landowner's alternatives for limiting liability?

First, the landowner may charge no fee or charge no more than four times the amount of ad valorem taxes imposed on the hunting premises. This is not a viable option for large-scale operations or where agricultural-use valuation is taken.

Second, landowners who charge more than four times the amount of ad valorem taxes may purchase liability insurance according to the specified minimum amounts.

Third, the landowner can do as the law dictates: inspect the property routinely and either warn the hunters of the dangerous conditions or make the conditions safe.  This may be difficult because conditions change rapidly.  Notifying all hunters of a dangerous condition may prove impossible.

Fourth, the landowner may require the hunters to purchase and assign a liability insurance policy to the landowner covering the landowners liability to the hunters.  The minimum coverage should equal or exceed the limits mentioned earlier.   Again, the premiums may cause the lease price to become prohibitive.

Fifth, the landowner may secure waivers from the hunters releasing the landowner from liability. A waiver is defined as the intentional relinquishment of a known right. To be effective, the release provision must meet certain standards. 

For instance, the agreement must be based on an offer and acceptance between parties who have equal bargaining power.  For this reason, a recent Texas appellate court ruled that parents cannot release, in advance, a minors right to recover for personal injuries caused by the negligence of another (Munoz v. II Jaz Inc. d/b/a Physical Whimsical, 863 S.W. 2d 207 [1993]).

The agreement for the release must be based on consideration, but it need not be monetary. The agreement not to sue in exchange for the right to hunt may be sufficient.

The Texas Supreme Court has added three more requirements for an effective waiver agreement.  First, the provision must state that the hunter indemnifies (releases) the landowner from any acts arising "from the landowners negligence."  This is sometimes referred to as the Express Negligence Doctrine (Ethyl Corp. v. Daniel Const. Co., 725 S.W. 2d 705[Tx.S.Ct., 1987]).

Second, the written contract must give the hunter fair notice of the release provision.  The fair-notice principle focuses on the appearance and placement of the provision, not its content.  However, the fair notice requirement is not necessary if the landowner can prove that the hunter had actual notice or knowledge of the provision (Spense ∓ Howe Const. Co. v. Gulf Oil Corp., 365 S.W. 2d 631 [TX S. Ct., 1963]).

Third, the release provisions must be conspicuous.  The element of "conspicuousness" is tied to the previous "fair notice" requirement.   Basically, the release provision must be conspicuous enough to give the hunter fair notice of its existence (Dresser Industries, Inc. v. Page Petroleum, Inc., 853 S.W. 2d 505 [Tx. S. Ct., 1993]).

How "conspicuous" is conspicuous?  No absolute answer can be given.  However, the following suggestions may be useful.
*  Make the written provision noticeable.
*  Emphasize the entire paragraph - not just a portion.  Better still, place the waiver at
    the end of the contract on a separate sheet of paper.
*  Use headings but not misleading ones.
*  Italicize the headings.
*  Ask the hunter to initial the waiver provisions of the contract or sign the page if
    stated on a separate sheet.
For some protection from the attractive nuisance doctrine, the landowner or lease agreement may require all children to be accompanied by an adult.

A waiver form was presented by the late Dean Patton, an attorney with Morrill, Patton and Bauer in Beeville, Texas, at the 13^th Advanced Real Estate Law Course sponsored by the Texas State Bar in 1991. The Real Estate Center has edited the form and included it at the end of this report. Neither Patton, the Real Estate Center nor DeerTexas.com, Inc. endorses the form. It is offered as an example only.

Conclusion

This report lists some of the more important issues that the landowner and hunter should resolve prior to or in conjunction with granting permission to hunt. Not all items apply to every lease. The terms must be tailored to the particular situation.

Preferably, the lease agreement should be written and signed to establish the exact terms and conditions. A lease agreement allows all parties to realize the privileges both being granted and received for the consideration paid.

This report is for information only; it is not a substitute for legal counsel.

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