Be a good sport! Take care with sporting rights on farmland

Sporting rights can be extremely valuable to landowners with some, such as rights on a grouse moor, being potentially of more value than the land itself.  Granting sporting rights to others also provides an attractive means of diversification and a source of additional revenue to improve profit margins.

However, as Jacqueline Barr, an agricultural law specialist at Ware & Kay Solicitors in York & Wetherby explains, ‘There can be pitfalls, when others have sporting rights over your property as this gives them the legal right to enter your land to hunt, fish or shoot.’

Acquiring land

When buying piece of land, many believe that they will own it in its entirety and have the right to do whatever they want on it, and to stop other people doing anything on it too.

Under English property law, a sporting right is an intangible right in land, known as an ‘incorporeal hereditament’, while the land itself, being tangible, is known as a ‘corporeal hereditament’.

When you grant someone a sporting right, you have given them permission to do something on and take something from your land without giving them any actual ownership rights to the land itself.

When you are buying or leasing land, sporting rights generally come with the property unless they have been explicitly excluded or previously reserved.

Before you buy land, our solicitors will check that any sporting rights are part of the purchase and have not become separated from the land. If such rights have been granted to someone else when you buy, this may severely restrict the way you are able to use your land.

Not only might it exclude you from indulging in such rural past-times on your own land, it might also scupper any development plans you have for the property because, once sporting rights have been granted, there is an implied term that the grantor will not do anything to limit or restrict the sporting rights.

This point was illustrated in the case of Peech v Best, in which the Court of Appeal agreed that development plans on land infringed the beneficiary of the property’s shooting rights, and therefore constituted a ‘derogation from grant’. The person with shooting rights was awarded damages, even though the shooting rights had only four years left to run, and the planned development would have affected only 2 per cent of the land subject to the shooting rights.

Granting sporting rights

Sporting rights can be created and granted in a variety of ways. The landowner can:

• sell the sporting rights, but retain the land;
• sell or lease the land, but expressly keep the sporting rights; or
• grant a licence to exercise the sporting rights for a set amount of time, with the rights reverting back to the landowner at the end of the agreed period.

Given the potential value of sporting rights, it is a good idea to ask our solicitors to set out any agreement about the grant or reservation of sporting rights in writing as a formal deed.

Such a deed should set out the rights involved including: what land the agreement covers; what creatures can be shot, fished or hunted and who owns the kill; any limits on kill numbers; sporting equipment that can be used; access and parking rights; responsibility for rearing and protecting the creatures which are subject of the sporting rights; and any restrictions should be placed on the landowner to stop them interfering with the sporting rights.

For further information on sporting rights contact Jacqueline Barr, in the agricultural law team at Ware & Kay on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247,  jacqueline.barr@warekay.co.uk or complete our online contact form.