Buying shooting rights: what you need to know before you pull the trigger

Shooting rights can be valuable rural assets. They are generally granted or reserved out of land, and then may be bought, sold, leased and, in some cases, registered separately from the land. They are also governed by a complex mix of property law, historic rights and modern case law.

When acquiring shooting rights it is essential to understand exactly what is being purchased. A well-drafted grant can support a successful shoot. A poorly understood one can lead to disputes, operational restrictions and unexpected costs.

What are shooting rights?

Shooting rights are a type of profit à prendre: a right to enter another person's land and take something from it. In this context, that means game.

Wild game generally belongs to nobody until lawfully killed or captured. Although the position can be more complicated where birds have been bred in captivity before release, the courts have confirmed that released pheasants are capable of falling within the definition of 'game' for sporting purposes. Even the word 'game' does not necessarily include all of the species that you might have in mind. You need to be sure that wildfowl, ground game, pest species and deer are all adequately defined, as appropriate to the landscape in question.

Shooting rights generally take one of two forms.

Profits Appurtenant. These rights are attached to neighbouring land (the dominant land) and usually pass automatically with ownership of that land. They cannot generally be registered under a separate title at HM Land Registry.

Profits in Gross. These rights exist independently of land ownership. They can usually be bought, sold and transferred separately and, in some circumstances, can have their own Land Registry title.

Registration matters

Where a profit à prendre in gross is granted out of registered land, registration requirements must be satisfied if the right is to take effect at law.

The requirements differ depending on the duration of the right. Broadly:

• rights granted in perpetuity or for more than seven years generally require their own title together with an entry against the servient title; and

• rights granted for seven years or less cannot have a separate title and instead require notice against the servient title.

When acquiring short-term shooting rights, buyers should not expect to see a standalone title. Instead, they should ensure that the necessary notice has been entered against the landowner's title.

Read the grant carefully

One consistent theme running through the case law is that shooting rights are interpreted strictly. The courts generally start with the wording of the grant and are reluctant to imply rights that have not been clearly given. Many older grants of sporting rights fail to include aspects of game management that we now take for granted, for instance the construction of release pens. More on this below.

Can reared birds be 'game'?

In Pole v Peake, the Court of Appeal confirmed that the term 'game' included pheasants reared for sport and later released. Once released, such birds are capable of being treated as wild game even though they originated in captivity.

The court also confirmed that a right to 'rear' game can include bringing birds to maturity through feeding and husbandry.

The limits of ancillary rights

More difficult questions arise when considering what activities may accompany a shooting right.

In Fuller v Kitzing, the High Court confirmed that where a deed expressly grants rights to preserve and rear game, those rights may include activities reasonably necessary to maintain the game population, including vermin control.

However, the court drew clear limits. Rights to preserve and rear game do not automatically extend to:

• introducing poults onto the land;
• stocking the land with pheasants;
• erecting pens; or
• installing other artificial structures associated with commercial game shoots.

The distinction is an important one. Feeding birds that are already present on the land may fall within a right to preserve and rear game. Artificially introducing birds that would not otherwise be there does not.

The practical lesson is straightforward. If a shoot depends upon releasing birds, constructing pens, installing equipment or carrying out extensive game management activities, those rights should be expressly granted in the deed.

A simple right to shoot game may be insufficient to support a modern commercial shooting operation.

Access rights matter

A shooting right has little value if the rights holder cannot practically access the land.

Generally, a grant of shooting rights carries ancillary rights of access that are reasonably necessary to exercise those rights. Depending on the circumstances, this may include vehicular access.

However, those rights are not unlimited.

The courts have recognised that sporting rights must be exercised in a way that respects the landowner's continuing enjoyment of their property. In Fuller v Kitzing, the court imposed practical restrictions on the exercise of shooting rights in the interests of the landowner, illustrating that conduct may be regulated even where access rights have been expressly granted.

The extent of any access rights should therefore be reviewed carefully when acquiring shooting rights, particularly where the shoot relies on vehicles, equipment or significant operational activities.

Shooting rights must be exercised reasonably

The law requires sporting rights to be exercised civiliter; that is, reasonably and without causing unnecessary interference to the servient owner's use of the land.

This principle has long been recognised by the courts.

Excessive use

In Farrer v Nelson, a sporting tenant introduced excessive numbers of pheasants, causing damage to the landowner's crops and the tenant was ultimately held responsible for that damage.

The principle remains important today. The holder of shooting rights cannot exercise them in a manner that effectively sterilises the landowner's ability to enjoy or manage the property.

In Fuller v Kitzing, the court confirmed that sporting rights must be exercised reasonably and without undue interference with the servient owner's enjoyment of the land.

Landowners retain rights too

A grant of sporting rights does not prevent a landowner from continuing to use and manage their land in the ordinary course.

In Pearson v Foster (a fishing rights case applied by analogy to wider  sporting rights), the court confirmed that the landowner remains entitled to make ordinary use of the property provided they are not acting for the purpose of destroying or undermining the granted rights.

The decision also illustrates a broader principle: ancillary rights will generally be interpreted narrowly. If an important management power is intended to accompany a sporting right, it should be expressly included in the grant rather than left to implication.

Due diligence and title investigation

As with any property transaction, proper due diligence is essential.

Where the rights are held in gross, buyers should investigate:

• whether the rights have been correctly registered;
• whether transfers and other title documentation are complete;
• whether any necessary notices have been entered against the servient title; and
• whether there are any restrictions affecting the exercise of the rights.

Where the rights are appurtenant, additional questions arise:

• Have the rights passed correctly through successive transfers?
• Is there a complete chain of title?
• Have historic subdivisions affected the benefit of the rights?
• Do the title documents and plans clearly identify the land benefiting from them?

Historic conveyances and plans are often central to sporting rights disputes. Small discrepancies between historic documents and modern Land Registry titles can become highly significant when determining the existence or extent of sporting rights.

For this reason, an investigation of older deeds is often required when dealing with appurtenant rights.

Practical points for buyers

Before acquiring shooting rights, buyers should consider the practical operation of the shoot as well as the legal title.

In particular, does the grant cover the intended activities? Many modern shoots rely on activities that go beyond simply shooting game and if the shoot requires:

• rearing or releasing birds;
• pest control;
• shooting infrastructure;
• game feeding; 
• vehicular access; or
• intensive game management,

the deed should be reviewed carefully to determine whether those activities are authorised.

Assumptions can be dangerous. The courts have repeatedly shown that they will start with the wording of the grant rather than assumptions about how a shoot is expected to operate.

Are there any competing rights?

Particular attention should be paid to:

• farming operations;
• public access arrangements;
• forestry activities;
• development proposals; and
• other sporting rights affecting the land.

A commercially attractive shooting right may be of limited value if other activities significantly restrict its exercise.

Is the relationship with the landowner sustainable?

The legal analysis is important, but many shoots depend upon a co-operative relationship between rights holder and landowner.

Arguments about access, farming activities, game management and maintenance can often be avoided through clear drafting and sensible practical arrangements from the outset.

The bottom line

In short, the value of shooting rights lies not simply in the right to shoot game, but in understanding precisely what has been granted, how those rights may be exercised and whether they are sufficient to support the intended sporting enterprise. Careful due diligence at the acquisition stage can significantly reduce the risk of costly disputes later.