Illinois Bar Journal

October 2014Volume 102Number 10Page 466

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Not-so-neighborly neighbors

Rural and exurban property owners who want to keep hunters and others off their land sometimes find it hard to do. But liability limits protect those who open their land to the public.

Along with the fresh air and wide-open spaces, country living can bring conflict with hunters, all-terrain-vehicle users, and other unwanted visitors. Although Illinois state law limits liability for landowners who allow the public to use their property, those who prefer to keep their land private often have their hands full.

According to Bloomington attorney Pete Trotter, the biggest surprise that has come with owning acreage in the country is the "absolute disrespect" with which his property lines have been treated. It can be difficult to know when a trespasser is a true trespasser, says Trotter. He has encountered what he describes as "legacy invitees," people allowed to freely enter his land and hunt or engage in other activities - by a prior owner. Many are unaware that someone else now owns the property. Some take umbrage at being asked to discontinue their use, Trotter said.

Purple paint

Illinois state law affords landowners some methods for designating their property private. For example, Illinois' purple paint law (720 ILCS 5/21-3(b-5)) enables them to mark their land without the need for posting visible "private property" signs on the more remote edges. The law allows landowners to mark trees and other objects with vertical stripes of purple paint - a sign to hunters and other would-be trespassers that the area is off-limits.

Unfortunately, Trotter has found, trespassers often ignore these postings. In areas where there were no trees to mark, he has found his signs and posts knocked over. This is particularly problematic on the large portion of his land in the Conservation Reserve Program, which is administered by the U.S. Department of Agriculture. He is responsible for building and preserving habitats on that land and preventing others from damaging them. Trespassers can damage the protected areas, exposing Trotter to personal liability. If he does not adequately protect these conservation areas, he may be forced to remit the value of the benefits that he has received for participating in the program.

Outdoor enthusiasts on all-terrain vehicles also threaten Trotter's land, he said, and he has encountered hostility when confronting interlopers on his property. His advice to other landowners seeking to keep their property private is to avoid getting into confrontations with people carrying firearms. Determined trespassers and poachers should be dealt with by the local authorities.

Limits on landowner liability

On the other side of the coin, Illinois law largely limits liability for landowners who allow the public to freely enter their land for recreational or conservation purposes. The Recreational Use of Land and Water Areas Act (745 ILCS 65/1 et seq.) significantly limits the personal liability of landowners for injuries sustained on their property. When landowners make their property accessible to the general public, they are protected from liability for all but a willful and wanton failure to warn the public of unsafe conditions.

This type of protection is often necessary for maintaining hiking trails, some of which traverse private land. Protecting landowners from liability ensures that generations of outdoors enthusiasts can enjoy the state's natural spaces.

However, the protections of the Act are not unlimited. Landowners who invite a specific group of people onto their land but exclude the general public do not enjoy the same protection (see Hall v. Henn, 208 Ill. 2d 325 (2003)). The Act specifically defines "invitees" as people who are invited onto land to the exclusion of the general public. 745 ILCS 65/2(f).

As hunting season gets underway, it's worth noting that the Act does appear to carve out a special exemption for hunters, defining "recreational or conservation purposes" as either: (1) entry onto the land of another for recreational shooting or hunting; or (2) entry by the general public onto the land of another. 745 ILCS 65/2(c). Based on this language, it appears that landowners can specifically allow access to hunters to the exclusion of others and still enjoy the Act's broad liability protections.

Matthew Hector is a Chicago lawyer.

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