Today’s owner of rural land has many potential risks to consider. As friends, family, and other guests enjoy your land for recreational activities such as hunting, swimming, and off-road adventures, you could be putting yourself and your property at risk. In addition, without a plan to manage risk, your property could be exposed to creditor’s claims brought about by a bad business debt, a medical emergency, a negligent injury to others, a divorce, a bankruptcy, or numerous other personal or business crises. With proper precautions and smart risk management in place, you can minimize the risk of forced liquidation of family land or the loss of other major assets. Braun & Gresham can help manage the risk of losing your assets, even your land, with risk evaluations, recommended policies and procedures, and strategic legal protections. To manage your risk, you must first know and claim your rights.

Protect Your Assets

To avoid the liability associated with unintended accidents or unresolved debts, every landowner should have a comprehensive risk management plan in place that uses multiple strategies to surround you and your family with protection . A risk management plan enables landowners to identify and assess problems, and to reduce the probability and exposure to risks specific to their land use. In addition, having a risk management program in place allows a landowner to feel more comfortable with inviting guests onto her property and decreases the likelihood of an accident or injury on the land. It can also protect your land from other personal and business creditors, by segregating your assets and your potential liabilities into separate and distinct ownership entities.

The Braun & Gresham Comprehensive Risk Management Plan

Unfortunately, there’s no silver bullet for protecting all your assets all the time. You have to build a wall against liability, one brick at a time. There are statutory protections for landowners, but there are certain actions that you must take to reap the full benefits of  the law. Having a strong, multi-layered risk management plan in place is the best way protect yourself.

The following is a list of key mechanisms Braun & Gresham uses to minimize risk and to protect our clients and their assets, especially their rural land (click on the titles below or the (+) to show the content below each category):

Risk Management

2. QUALIFYING FOR STATUTORY PROTECTIONS     (+)

Recreational Use Statute

This law provides protection to landowners for damages or injuries suffered by anyone entering the property for “recreational purposes” (for a full list of what the law defines as ‘recreational purposes,’ CLICK HERE). This law is significant because it reduces the landowner’s duty to others by providing that a landowner owes no greater duty of care to a recreational user than he would to a trespasser, and is not liable for any injury to the person except for injuries caused by willful or wanton acts or gross negligence by the owner, lessee, or other occupant. In addition, even when a landowner is found to be liable for injury, their exposure is limited to the insurance proceeds.

However, in order to take advantage of the protections provided by this law, a landowner must meet the requirements of the statute. Our risk management review encompasses an assessment of the client’s protections under this important law, and makes recommendations to ensure that the client is maximizing the statutory provisions of the recreational statute.

Equine Statute

This statute requires “equine professionals” to post a warning notice and to include a warning in contracts with specific language set out in the statute. While the signage requirement only applies to a person providing equine services for compensation, there are benefits to posting a warning notice for non-paying guests as well. At Braun & Gresham, we provide guidance on the protections and limitations provided by the Equine Statute, as well as signage and waiver requirements.

Braun & Gresham also offers maintenance of existing entities as a service to ensure that our clients’ entities operate properly and in compliance with legal requirements. These related services may include serving as a registered agent, assisting with corporate formalities, and calendaring reminders for entity activities.

1. CREATION AND MAINTENANCE OF A BUSINESS ENTITY     (+)

When property is owned in an individual’s name, that property is subject to the claims of the individual’s creditors. It can be lost through a bad business debt, a medical crises, a negligent injury to others, a divorce, or a bankruptcy. By placing your property in a business ownership structure, such as a Limited Liability Company (“LLC”) or Family Limited Partnerships (“FLP”), you can help protect your rural land from claims made by others.

Braun & Gresham also offers maintenance of existing entities as a service to ensure that our clients’ entities operate properly and in compliance with legal requirements. These related services may include serving as a registered agent, assisting with corporate formalities, and calendaring reminders for entity activities.

3. QUALIFYING UNDER TEXAS HOMESTEAD LAW     (+)

The Texas Property Code allows homeowners to designate their homesteads to protect them from a forced sale to satisfy creditors. This law does not, however, protect the homeowner from tax foreclosure sales of their homes for delinquent taxes. Our risk management review includes an assessment of homestead protections from both a property tax and a creditor protection standpoint to ensure that the client is fully availing themselves of all the special allowances afforded to them under Texas law.

4. DEVELOPING EFFECTIVE WAIVERS     (+)

It is a common practice for landowners to obtain waivers from guests before they enter their property. The use of a waiver is also an opportunity to educate visitors about safety procedures and protocols, reducing the likelihood of injury or damage. However, this area of the law is constantly evolving, so as a part of this service, we notify our clients for a five year period of any significant changes in this area of the law, and provide updated waivers as needed.

5. PROVIDING QUALIFIED SIGNAGE     (+)

The Texas Supreme Court has found that a failure to warn of a hidden, dangerous artificial condition can constitute gross negligence when the landowner is aware of both the presence of visitors and the hidden danger. A thorough risk assessment will evaluate potential hazards such as water features, condition of roadways, and activities occurring on your property. Our risk management review also includes guidance in regards to the proper method for marking private property, such as posting trespassing signs.

6. DEVELOPING LEASE AGREEMENTS     (+)

A written lease is an opportunity to provide an income stream for a landowner, but it can also lead to exposure to risk, misunderstandings, and disputes if important terms are not included. This can be especially true for hunting leases and oil & gas leases. As part of our risk management review, we review all lease agreements for our clients, whether they are written or oral, and provide guidance regarding forms of these agreements.

7. TRAINING, INSTRUCTION, PRACTICES AND PROTOCOLS     (+)

It is critical that landowners take the time to instruct their guests about the safe operations of equipment on their property. When we conduct a risk management review, we assess these types of operations and provide our clients with instruction practices and protocols to ensure that guests receive the proper instruction and to minimize the likelihood of an injury on the property.

8. REVIEW OF FEES CHARGED IN OPERATIONS     (+)

As mentioned in # 2 under ‘Recreational Use Statute, landowners owe a recreational guest, such as a hunter, no greater degree of care than is owed to a trespasser if there is no charge for entry. Our risk management practice incorporates a comprehensive review of fees charged in a client’s operations, in order to identify all the ways a landowner may take advantage of these protections under this law, and protect themselves from costly lawsuits.

9. INSURANCE REVIEW     (+)

The Recreational Use Statute (as outlined in #2) provides caps on recoveries for acts or omissions caused by an owner, lessee or occupant on agricultural land when used for recreational purposes, when the injury relates to the property conditions. As a result, we include a review of policy levels and key terms for liability insurance for our clients when we conduct a risk management review. This review includes policies held by the client as well as their lessees and occupants.

For an additional fee, we partner with insurance specialists to conduct a more comprehensive insurance review that identifies deficiencies related to life , property , business , and disability insurance, and makes recommendations to address deficiencies. The service may include the negotiation of policy terms, solicitation of select bids for insurance coverage, and the implementation of selected policies and practices.

The Texas Property Code allows homeowners to designate their homesteads to protect them from a forced sale to satisfy creditors. This law does not, however, protect the homeowner from tax foreclosure sales of their homes for delinquent taxes. Our risk management review includes an assessment of homestead protections from both a property tax and a creditor protection standpoint to ensure that the client is fully availing themselves of all the special allowances afforded to them under Texas law.

10. IDENTIFYING AND MITIGATING POTENTIAL HAZARDS     (+)

If you allow guests to bring minor children on your property, you are held to a heightened responsibility to their children- even unaccompanied, trespassing children. Therefore, the landowner must take reasonable steps to locate dangerous artificial conditions and eliminate the danger or otherwise protect children. Through our Risk Management Assessment, Braun & Gresham helps clients identify potential hazards to children, and develop a plan for mitigating these risks.

11. INSPECTION RECOMMENDATIONS     (+)

Landowners have a legal duty to keep the premises safe for the invitee’s protection. In practical terms, the landowner must give the invitee adequate and timely notice of concealed, latent perils 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. For this reason, periodic and regular inspections of property is advised, as the corrective measures resulting from this inspection could prevent an accident from occurring. As any good lawyer will tell you, prevention and forethought is the best remedy for avoiding costly lawsuits.

Not every landowner may need all of these tools, but a free 30-minute initial consultation with one of our attorneys should allow us to begin matching your needs with the appropriate legal mechanism(s). The peace of mind a well-developed risk management plan can bring you, and the numerous problems that it can solve is worth the effort and cost to protect your precious land.

Contact Thomas Hall today to set up your free 30-minute initial consultation: 512-894-5426 or thall@braungresham.com