3003 Lakeland Cove, Suite E.  |  Jackson, MS 39232  |  601-420-2200

MASSEY, HIGGINBOTHAM, VISE, AND PHILLIPS, P.A.

FAQ

Is it better to form a corporation or an LLC  to own my land?

Probably best to consider a limited liability company or LLC.  A common mistake in planning is to place appreciating property into a corporation.  There may be reasons later on to take the land out of the corporation even though you are not selling the land.  In a corporation, from a tax standpoint, you may have to pay taxes upon distributing land out to the shareholders based on the value of the property today compared to its basis when you put it into the corporation.  An LLC may offer favorable tax laws which do not require the immediate recognition of gain upon distributing the land out of the LLC.  You should consult your lawyer before making a mistake. Read more about the different types of business entities.

Do you recommend requiring liability waivers for people who hunt on your land?

Yes.  If handled properly, a hunter would sign an agreement that he will not hold the landowner liable for injuries that might occur as the result of his use of the property or premises.  Don’t stick these under the nose of a paying guest 5 minutes before you put him on a tree stand but if you handle this properly, you will have placed  a substantial obstacle in the way of potential lawsuits when an injury occurs.  We know that many tree stand accidents, ATV accidents, shooting accidents, premises related injuries will occur every hunting season, and a liability waiver can add substantial protection for a landowner.  Again, don’t play lawyer.  Call a real lawyer and do this right.  There are special considerations for minors and others who don’t really understand that they could be giving up a very valuable legal right.

What happens to my land if I don’t have a Will? 

In most states, in the absence of a Will, then property in your name descends to your spouse and children in equal shares.  If you are not married and have no children, then the property would pass to your siblings and parents in equal parts.  This gets increasingly complicated when you’re in a second marriage, or siblings or children have predeceased you.  A Will allows you to specify what will happen to your land.  For instance, “I leave everything to my wife, but if my wife predeceases me THEN to my children in equal shares.”  If you want to make sure the land stays in the family, you may want to give serious consideration to setting up one or more Trusts and lay out the terms of use and how you expect the property to be handled by your descendants.  Probate can turn a family against each other and that can be tragic.  Good planning on the front end helps maintain family unity and lets YOU decide what will happen to what is often your most cherished asset, your land. Read more about estate planning.

I need help getting a hunting lease put together – what do I need to consider? 

Hunting leases are the foundation of most hunting clubs.  Good drafting of the lease will include carefully indentifying the parties to the agreement in order to be enforceable.  It will include a good legal description for the land and any easements.  It will set forth the payment terms, any price escalations, options to renew, the terms upon which the lease may terminate, rules and many other critical factors.  Again, don’t take a “cookie cutter” approach by downloading forms.  Get the assistance of a lawyer who understands the issues and get this right on the front end to avoid hassles and later problems. Read more about writing a hunting lease.

If I buy land from someone who was leasing it for hunting or another use, can I terminate the lease?

Unless there is a provision in the lease that the agreement is between the landowner and the hunting club, it is unlikely that you can terminate the lease. If the lease is valid and the terms are for a certain number of years, you will probably be unable to terminate the lease.

Does our hunting club have to file taxes?

If your club is incorporated or an LLC and you are taking in revenues and making lease payments, you are probably going to have to file some sort of tax or information return, but you may not owe taxes. Check with your accountant and your attorney to see if you have the obligation to file taxes.

What do I do about trespassers on my land?

You are probably most likely to get some help by getting the authorities to intervene with warnings to the offending hunters.  I would make sure to warn the hunters in writing of what is going on so that if they persist you have a record of the communication. The better avenue long term would be a civil action (not criminal) alleging damage to your profits and land values as the result of what they are doing.  I’d take a longer term approach, lay the groundwork, accumulate evidence, take videos, keep a diary of what is going on, collect names, notify authorities and put yourself in the position of doing everything you could reasonably have done to resolve this matter outside of court, so that when you DO finally go to court (if that becomes necessary) the facts will be squarely in your favor.  You will be the reasonable party dealing with unreasonable people who think they can trample on the rights of others. Do not take matters into your own hands or attempt to injure or harm the trespassers. If they perceive that you are setting them up for a lawsuit for civil trespass, in which case you would claim as damages diminution in value and marketability, etc..) they’ll probably not want that fight.  A well placed letter advising them that if you have further problems then that is exactly what you intend to do, you’ll probably make them think twice. Learn more about handling trespassers on your Mississippi land.