Asset Protection

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, 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.

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.

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.

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 regarding the proper method for marking private property, such as posting trespassing signs.

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.

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.

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, to identify all the ways a landowner may take advantage of these protections under this law and protect themselves from costly lawsuits.

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.

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.

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 are the best remedy for avoiding costly lawsuits.