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Frequently Asked Questions
- Should I require people to sign waivers before coming to my property?
Lawyers specializing in landowner liability recommend getting waivers signed by guests and business invitees before recreating on private property. A waiver should be a brief, one page document that explains as a condition of being present on the landowner’s property that an invitee will not hold the landowner responsible for anything that might happen on the property. A waiver done properly and given to the invitee in advance is a very effective way of limiting landowner liability. Waivers and documents of other expectations should be sent to invitees, especially hunting clients, weeks prior to their arrival on the property so no problems will arise with signing of waivers on the day the client arrives. Trial lawyers are more reluctant to take cases when waivers have been signed by those trying to sue the outdoor recreational business, but a landowner does not want to alienate a customer by springing the waiver on him at the last minute.
- What are the pros and cons of using a business entity (LLC, S-Corp, etc) rather than running my business as a sole proprietor
The law recognizes that a corporation or a Limited Liability Corporation (LLC) has an identity which is separate from the owner of that business. So the principle here is, by deeding property into an LLC, which will be the entity doing business with the public and managing employees taking liability from the landowner personally. If a problem occurs with a customer or employee, the problem will only be associated with the LLC and other assets not under this LLC will be protected. For example, personal savings, other land not associated with the specific LLC in question, and any other business interests will not necessarily be exposed to the liability just because something went wrong within one particular business entity. Learn more about business structures.
- Do I need a written lease when leasing my land out to a hunting club or an individual for hunting?
A landowner definitely needs to reduce any sort of a lease to writing. A lease explains that the landowner is going to lease the lessee a piece of property for a certain amount of money, for a certain length of time with certain conditions. A lease is simply a contract and as long as people are on the same page, they are less likely to have problems with the agreement when it is in writing.
- What types of things should I put in a lease (in addition to amount of money, length of time, and conditions)?
A landowner wants to put the liability and potential for lawsuits at the hands of the lessee in terms of a written lease. Hold harmless provisions must be added which state that the landowner will be held harmless from any lawsuits that might occur. The lessee will indemnify the landowner for any costs that might incur in defense proceedings, and this must be stated to put that liability on the lessee. Written requirements that require the lessee to get liability insurance and name the landowner as an additional insured on that policy should be included in the lease, and landowners should obligate the lessee to provide proof that they have obtained that insurance. Learn more about leases.
- With respect to Mississippi, is there any legislation protecting landowners in the state?
Mississippi has a recreational land use statute, but basically what it is doing is protecting people who have opened their land up without charging anybody to come on their property. If you are making your land available for free to somebody there is some protection, but people who are operating outdoor recreational businesses do not have much protection. All of the surrounding states are really doing a good job of putting some protection on the books, but unfortunately, Mississippi at present really does not have a lot to protect the landowner.
On the other hand, Mississippi common law, or case law, clearly states that unless a landowner is doing something wrong, negligent and unreasonable in the way that they are taking care of the property, they have liability protection, but people do not often realize this. If these laws were codified differently and in effect to remind the landowner that they are not necessarily going to be held responsible for naturally occurring conditions on the land perhaps the number one issue keeping landowners back from opening an operation, liability, would decrease and more NRE businesses would benefit local economies. Some legislation that codifies and clarifies the laws pertaining to landowner liability in Mississippi would most likely comfort landowners, and the number of people operating outdoor recreational enterprises in the state would be enhanced.