Allowing public access creates additional considerations as well as additional opportunities.

There are a variety of opportunities in relation to recreational uses on agricultural land.  Recreation on agricultural land can include hunting and fishing, as well as agritourism activities such as pumpkin patches and corn mazes.  You and your tenant can use the land yourself for recreation, charge others for recreation on the land, or open the land to the public for certain uses.  Opportunities that allow your tenant to use, or to charge others for the use of, the land for recreation diversifies the economy and increases tenant motivation to maintain and restore wildlife habitat.  Granting public access can also provide financial benefits under certain state programs and helps improve the quality of life for the surrounding community.  Like many other issues, these opportunities present additional considerations when dealing with leased farmland.

The Right to Recreate on Leased Land

A written provision within the lease agreement should address the rights of the each party in relation to recreation opportunities.  If a lease agreement is silent on the matter, the tenant likely has the right to use the property for hunting and fishing, as well as to lease the property to others for such purposes.  Therefore, if you wish to reserve any recreational rights for yourself or to limit your tenant’s rights in this regard, you should specifically state the limitations in the lease.  However, as previously stated granting such rights to your tenant can encourage development of wildlife resources and perhaps offset the cost of certain conservation practices through third-party hunting and fishing leases.

Liability on Leased Land

Liability is also an important consideration.  If the tenant retains the right to lease the property for hunting or fishing, you will want to ensure the tenant is willing to indemnify you against any claims by third party users.  Indemnifying your tenant, of course, should also be considered if you are the one leasing the premises for third party activities.  Consideration should also be given to requiring insurance to be carried by the party responsible for permitting others to use the property.  It is worth noting that some state public access laws relieve landowners and tenants of some liability in relation to members of the public on the property.  State laws should be checked for the extent of liability relief and limitations.  For instance, some state laws only cover land for which no charge is required to gain access.

Preventing Interference with Agricultural Uses

If you’re interested in reserving the right to lease the land yourself, you should consider including provisions that protect your tenant’s agricultural interests in the land.  Such provisions might include ensuring that hunting activities will not take place during certain farm operations or requiring that advance notice will be given before anyone enters the property for recreational purposes.

Land Use Regulations

Attention should also be given to land use regulations and zoning requirements if the recreational use involves agritourism. Many states have adopted right to farm laws that exempt agriculture from zoning requirements.  However, recreational activities can undermine a determination of a business as an agricultural endeavor, thus subjecting the enterprise to certain land use requirements.

Additional Resources:

The National Agricultural Law Center’s database of state recreational use statutes.

  • These are the statutes that limit liability in return for allowing public access to land.

Agricultural Marketing Resource Center: Agritourism.

  • Part of Iowa State University, this website provides educational materials on developing recreation opportunities on farmland.