Delaware

Recreational Use/Recreational Trespass Laws

7 Del.C. 5901 through 5907

§ 5902. Definitions

As used in this chapter:

(1) "Land" means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.

(2) "Owner" means the possessor of a fee interest, tenant, lessee, occupant or person in control of the premises.

(3) "Recreational purpose" includes, but is not limited to, any of the following, or any combination thereof: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archaeological, scenic or scientific sites.

(4) "Charge" means the admission price or fee asked in return for invitation or permission to enter or go upon the land.

§ 5903. Limitation on duty of owner

Except as specifically recognized by or provided in § 5906 of this title, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on such premises to persons entering for such purposes. The limitation of duty of the owner granted by this section applies whether such persons entered upon the land of the owner with or without consent of the owner.

§ 5904. Use of land without charge; limits of liability

(a) Except as specifically recognized by or provided in § 5906 of this title, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:
(1) Extend any assurance that the premises are safe for any purpose;
(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed;
(3) Assume responsibility, or incur liability, for any injury to person or property caused by an act of omission of such persons.

(b) The limits of liability of an owner as set forth under this section shall apply whether the person entered upon the land of the owner with or without consent of the owner.

§ 5906. Limitations on exemption from liability

Nothing in this chapter limits in any way any liability which otherwise exists:

(1) For willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity;

(2) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that in the case of land leased to the State or a subdivision thereof, any consideration received by the owner for such lease shall not be deemed a charge within the meaning of this section.

§ 5907. Exemptions

Nothing in this chapter shall be construed to:

(1) Create a duty of care, or ground of liability, for injury to persons or property;

(2) Relieve any person using the land of another for recreational purposes from any obligation which he or she may have in the absence of this chapter to exercise care in his or her use of such land and in his or her activities thereon, or from the legal consequences of failure to employ such care.

Financial Incentives for Public Access

Property Tax Incentives:
Current Use Programs: 

Delaware uses special valuation for agricultural, horticultural and forest land uses.

Statute: Del. Code Ann. tit. 9, Part V §§ 8328-8337

Method of Assessment: Fair market value for agricultural, horticultural and forest land use.
http://www.delcode.delaware.gov/title9/c083/sc01/index.shtml#TopOfPage

Application: Yes, burden on owner to apply to assessor of tax district, § 8334

Plan Requirements: N/A

Current Use Taxation for open-space land: 

Delaware has no current use taxation to promote open space or recreation.

Tax incentive specifically for providing access: 

Delaware has no tax incentives to provide hunter access.

Tax Incentive when land is subject to Conservation Easement: 

Delaware does not have tax incentives for all conservation easements, but does provide benefits for agricultural preservation easements under the Agricultural Lands Preservation Act, §§ 3 Del.C. §§ 913 – 918.

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Income Tax: 

Delaware does have a tax credit for land donated for the purpose of open space.

Statute: 30 Del. C. §§ 1801 to 1807 - Land Donated for Conservation or Preservation.

Program: Income tax credit of 40% of the appraised fair market value, not to exceed $50,000 per year, if donated for open space or for outdoor recreation. There is a 5-year carry over period if a portion of the credit cannot be used in a single year. The total amount of tax credits that can be issued by the state cannot exceed $10 million and state is limited to an annual fund not to exceed $1 million.

Tax: 2.2% to 5.95% (depending on income)

Enacted: 1999 (became effective in 2002)

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Hunter Access Program: 

No programs classified as “state administrated walk-in hunter access programs” were identified in this state via general internet search. However, for more accurate information regarding this state’s hunter access programs or efforts, please view the Hunting Heritage Action Plan Hunter Access Program Assessment Survey Report.

Case Law

Gibson v. Keith 492 A.2d 241

-Invitation or permission direct or indirect, extended by landowner to public to enter without charge for recreational purposes is sine qua non for invoking the Recreational Use Act's protective benefits, but to secure such benefits, owner is not required to make explicit “offer” of land or water area for recreational use.
-Landowner who undertakes affirmatively either to warn or bar public from entry cannot assert the Recreational Use Act as bar to tort claim brought by person who has entered premises either with knowledge or in disregard of owner's efforts to keep public out.
-Land or water area's particular conduciveness to use and owner's positive efforts to make such areas available without charge to public for recreational use determine landowner's right to invoke protection of the Recreational Use Act; however, application of Act is limited to recreational use of essentially undeveloped land and water areas, primarily rural or semirural land, water or marsh, and Act does not apply to urban or residential areas improved with swimming pools, tennis courts and the like.