by J. Wilbourn Vise and William M. Gage*

Outdoor recreational activities - hunting, fishing, camping, hiking, biking - are increasingly popular today. Everyone wants more leisure time in the great outdoors. Forest landowners can benefit by leasing the recreational rights to use their land. Recreational leasing of one's privately-owned timberland can be a valuable asset as a timberland management tool. Leasing enables a landowner to increase revenues derived from the ownership of property while at the same time allowing the landowner to accomplish certain timberland management goals.

Leasing the right to your land can have several advantages. For a lease to benefit a landowner, it is important to lease to someone that you know will be a good steward of the land and who will get along with residents of the surrounding community. Leasing assures the landowner that someone will be on his or her property at frequent intervals throughout the year and can look after the property. This affords a landowner with many potential benefits - protection from timber theft, protection from trespassers and poachers, protection from boundary-line encroachment, protection from fire, someone to look for pine beetle infestations or disease to timber stands, wildlife management and enhancement, and maintenance of roads and access through the property. Furthermore, the lease money received by the landowner will usually pay for the property taxes and put a little extra money in the landowner's pocket.

The primary disadvantage of leasing is that the landowner relinquishes the right to have exclusive access to his or her own property. Another potential disadvantage is that you may lease to a bad tenant who fails to respect or maintain the property or who fails to get along with members of the surrounding community. A bad tenant is almost always more trouble than the lease payments are worth.

In Mississippi, hunting leases on forested timber lands typically range from $3.50 per acre per year to as much as $15.00 per acre per year. However, the majority of leases on forested timberlands are in the $4.00 to $6.00 range and prices have been steadily rising in recent years. The price of a recreational hunting lease primarily depends on the location of the property - its proximity to reputed wildlife habitat areas and its proximity to population centers.

There are several different ways that a landowner can lease his or her property. The most traditional method is to lease the exclusive hunting and fishing rights to an individual or a club for a predetermined period of time, usually three to five years. At the end of the term, the lease is either renewed or the property is leased to someone else. If a landowner is interested in maximizing his or her return by recreational leasing and is willing to be a more active leasing manager, the landowner may consider entering into more than one lease for different uses of the property at different times of the year. For example, a landowner could lease the deer hunting rights to one group of hunters during the fall and winter, the turkey hunting rights to another group in the spring, and the fishing rights to another group year round. If you have doves on your property, you may want to lease any open fields and the dove hunting rights to someone else during the early fall. A landowner may also wish to lease the camping and hiking rights to yet another group during the summer or when hunting seasons are closed. Of course, trying to manage so many different leases on one tract of land may be somewhat of a managerial headache for the landowner. The point is that there are numerous possibilities for the landowner to maximize his or her returns by leasing the recreational rights to the land.

Certain provisions should be included in every recreational lease for the protection of the landowner. Any lease should be committed to writing and should be signed by the parties. The lease should set forth in detail the type of activities permitted under the lease - deer hunting, migratory bird hunting, fishing, camping, hiking, etc. It should provide for the length of time that the lease will run. It is advisable for an initial lease to last no longer than one year. This will allow a landowner to evaluate the tenant on a trial basis to determine if the tenant will be a good steward of the land and is likely to comply with the terms of the lease for a longer period of time. After the first year expires, then the landowner may consider renewing the lease for a longer duration. The lease should state the price of the lease, any incremental increase in price which may occur annually, and the date upon which the lease payment is due.

The lease should also contain a provision that evidences the fact that the landowner has acquired the property for the purpose of growing and managing timber and other forest products and that the landowner's rights to manage and grow the timber supersede any rights granted by the lease. The tenant should be prohibited from interfering with timber operations and from cutting and removing any growing timber without prior approval of the landowner.

The lease should attempt to shield the landowner from potential liability. The landowner may want a provision obligating the tenant to indemnify, defend, and hold harmless the landowner from all claims, demands, liabilities, suits, and judgments arising out of the tenant's activities on the property. The landowner may also require the tenant to purchase liability insurance with specified minimum limits of liability, naming the landowner as an additional insured under the policy. This is a growing trend in recreational leasing and many insurance companies provide recreational hunting liability insurance at reasonable rates.

The lease should also contain a provision that addresses termination of the lease. Specifically, the landowner may want to reserve the right to terminate the lease without reason by giving advance notice to the tenant. In that situation, the landowner will likely be obligated to refund any unearned rent as a result of the lease's early termination. Additionally, the landowner may want to prohibit the tenant from subleasing, or assigning the rights under the lease to another party.

A recreational lease should also address how the landowner expects the lessee to act while on the property. The lease may address, for example, issues relative to the maintenance or construction of property roads, gates, fences or other structures. The lease may also require the tenant to "post" the property and enforce trespassing laws. Compliance with all state and federal game laws should be mandatory, and the landowner should consider requiring the tenant to participate in certain wildlife management programs. The tenant should be required to keep the property free of garbage and debris and should notify the landowner of any unauthorized dumping of trash or waste by trespassers. The lease may also require the tenant to provide immediate notice to the landowner as well as law enforcement authorities of any wildfire, trespass, poaching, unauthorized dumping, or unauthorized removal of timber. Some leases prohibit certain activities such as commercial hunting or fishing, commercial camping, and non-hunting related vehicular activities.

There are significant advantages for a landowner to lease the recreational rights to his or her property. The two most important things in recreational leasing are having (1) a trustworthy tenant who will be a good steward of the land and (2) a well-written lease agreement which sufficiently protects the landowner. Anyone interested in leasing the recreational rights to their property should consult with his or her legal advisor prior to doing so to ensure that their rights as a landowner are protected.

* Will Vise and William Gage are attorneys with the law firm of Butler, Snow, O'Mara, Stevens & Cannada, PLLC. That law firm regularly contributes articles on legal issues of interest to forestry and landowners.