Ag Law Blog – Orsborn, Mitchell, Goedken & Larson, PC https://www.southiowalaw.com Fri, 14 Dec 2018 15:43:27 +0000 en-US hourly 1 https://wordpress.org/?v=5.4.2 https://i0.wp.com/www.southiowalaw.com/wp-content/uploads/2018/06/cropped-law-512.png?fit=32%2C32&ssl=1 Ag Law Blog – Orsborn, Mitchell, Goedken & Larson, PC https://www.southiowalaw.com 32 32 152613500 Right to Hunt Amendment Introduced in Iowa Again https://www.southiowalaw.com/right-to-hunt-amendment-introduced-in-iowa-again/ Tue, 21 Feb 2017 06:00:00 +0000 https://www.southiowalaw.com/right-to-hunt-amendment-introduced-in-iowa-again/ For the second year, a bill was introduced that would add an amendment to the Iowa Constitution declaring that Iowans have a right to hunt, fish, trap, and harvest wildlife.  The amendment’s […]

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For the second year, a bill was introduced that would add an amendment to the Iowa Constitution declaring that Iowans have a right to hunt, fish, trap, and harvest wildlife.  The amendment’s supporters cite the need for the amendment stemming from

efforts of animal rights groups to limit hunting and trapping.  The amendment could also provide protections for hunting rights that may be in competition development and increased use of public land by other recreational groups, such as hikers and off-road vehicle enthusiasts. Critics assert such amendments clutter constitutions and are unnecessary to protect individual rights.

The Right to Hunt Amendment, House Joint Resolution 4, has been referred to the House Natural Resources Committee for consideration.  If the amendment passes through the legislature this session, it will have to be approved again by the legislature in one of the two following years.  Once approved again, the amendment would go to Iowa voters for ratification.

Twenty-one other states have Right to Hunt and Fish amendments in their constitutions, including Iowa neighbors Minnesota, Nebraska, and Wisconsin. Missouri also introduced an amendment to guarantee the right to hunt and fish, but it failed to pass in 2016.

Below is the full version of the proposed Amendment.

Right to hunt, fish, trap, and harvest wildlife. SEC. 24A.

1. The people of this state have the right to hunt, fish, trap, and harvest wildlife, including by the use of traditional methods, subject to reasonable laws enacted by the general assembly and reasonable rules adopted by the state executive branch that promote wildlife conservation and management, that maintain natural resources in trust for public use, and that preserve the future of hunting, fishing, trapping, and harvesting wildlife.

2. Public hunting, fishing, trapping, and harvesting of wildlife shall be a preferred means of managing and controlling wildlife.

3. This section shall not be construed to modify any provision of law relating to eminent domain, trespass, property rights, or water resources.

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New Resource for Conservation In Farm Leases https://www.southiowalaw.com/new-resource-for-landlords-exploring-cover-crops/ Tue, 24 Jan 2017 06:00:00 +0000 https://www.southiowalaw.com/new-resource-for-landlords-exploring-cover-crops/ A new resource is available for landlord’s looking to incorporate cover crops and other conservation practices into their farm lease.  Iowa Learning Farms, a part of Iowa State University Extension, just published […]

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Resources for Farm Lease Conservation

A new resource is available for landlord’s looking to incorporate cover crops and other conservation practices into their farm lease.  Iowa Learning Farms, a part of Iowa State University Extension, just published a series of videos and print material that provide information about how landlords can begin conversations with their tenants about conservation practices.

Iowa State University Professor and Iowa Learning Farms advisor, Mark Licht, states,

“A large number of Iowa cropland acres are rented every year; nearly 50% according to recent surveys. These rented acres are greatly influenced by the tenant who farms them. Landowners are integral in the decision-making process: from leasing structure and understanding farming practices, to being considerate of practice costs and profitability.  With emphasis being placed on nutrient loss reduction and practices ranging from in-field to land use changes, it’s imperative for landowners and tenants to have conversations about reaching production, profitability, and environmental goals. These conversations can lead to improvements of soil health and water quality, along with meeting productivity and profitability goals.”

 

The new resources address different conservation topics, including cover crops, no-till and strip-tillage, practices for removing nitrates, and land use changes, such as prairie strips, perennial cover, and extended crop rotations.

Communication between landlords and tenants is critical to a good landlord-tenant relationship and also a healthy farm with healthy soil.  Its also to remember that such conversations should be reduced to writing in a farm lease contract. Landlords and tenants are often reluctant to put such practices into writing, but it allows both parties to ensure they completely understand one another and it protects the interests of both parties.

The resources are available on the Iowa Learning Farms website.

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Missouri Strictly Construes Private Road Statute https://www.southiowalaw.com/missouri-strictly-construes-private-road-statute/ Sat, 19 Mar 2016 05:00:00 +0000 https://www.southiowalaw.com/missouri-strictly-construes-private-road-statute/ Missouri Courts recently addressed issues relating to the increase in size and weight of farm equipment and resulting problems accessing farmland. As equipment gets larger and heavier, existing easements and roads that […]

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Missouri Courts recently addressed issues relating to the increase in size and weight of farm equipment and resulting problems accessing farmland. As equipment gets larger and heavier, existing easements and roads that have been used for decades often become inadequate to allow farmer’s access to fields.

In Westrich Farms, LLC v. East Prairie Farm, LLC, a landowner’s tenant could no longer use a county road to access the farm because his large equipment exceeded the weight limits for a bridge on the county road that ran to the farm and had previously been used.  The issue for the court to decide was whether the landowner could establish a private road across his neighbor’s farm due to the county road becoming inadequate.

Missouri law does allow for the establishment of private roads across a neighbor’s land if there is not sufficient access to a public road under Missouri Statutes Section 228.342. However, in Westrich Farms, the court, while not denying that access to the farm may be limited, did find that the statute should be strictly construed and that if there is any access to a public road, the right to establish a private road on a neghbor’s property does not exist.

This relatively short case is provided here.

Missouri Court of Appeals – Southern District

Westrich Farms, LLC v. East Prairie Farm, LLC

December 2, 2015

AFFIRMED

This appeal follows Plaintiff’s failed § 228.342 action for a private road across its neighbor’s farm. We affirm. Plaintiff’s claim does not fit the cited statute, which runs “against the common law and the common rights, and must, therefore, be strictly construed.”  Wolfe v. Swopes, 955 S.W.2d 600, 602 (Mo.App.1997).

Applicable Law

A private road may be established or widened in favor of any owner or owners of real property for which there is no access, or insufficiently wide access, from such property to a public road if the private road sought to be established or widened is a way of strict necessity. § 228.342

“If the court determines … there is access to a public road or that the way sought is not a way of strict necessity, then the petition shall be dismissed.” § 228.352.  “Missouri courts have consistently interpreted section 228.342 to require a plaintiff to show … there exist no public roads through or alongside the land and that the private road petitioned for is mandated by strict necessity.” Short, 372 S.W.3d at 530 (citations and quotation marks omitted).

Salient Facts

Plaintiff leased its 320-acre farm to a large-scale operator whose equipment weight exceeded a bridge load limit on County Road 702 leading to Plaintiff’s farm. City § 228.342, Plaintiff petitioned for a mile-long private road across Defendant’s neighboring farm. The court denied relief after an evidentiary hearing because, as the judgment states, “there is in fact public access to Plaintiff’s land via County Road 702.”

Analysis

The simple dispositve fact is that Plaintiff’s farm is not property, in § 228.342’s terms, “for which there is no access” to a public road. Indeed, Plaintiff admits public road access in its appellate brief; e.g., “County Road 702 runs adjacent to Westrich Farms’ property …” and “the property is adjacent to County Road 702.”

Plaintiff urges that its farm is “functionally landlocked” and County Road 702 is “inadequate for farming purposes” because the lessee’s equipment wights more than one bridge’s load limit.  Yet Plaintiff’s few cited cases are distinguishable and do not support our stretching § 228.342 to fit this claim, nor does our research turn up a supporting case. We find instead the above-cited admonition that § 228.342 proceedings “are against the common law and the common rights, and must, therefore, be strictly construed.” Wolfe, 955 S.W.2d at 602; see also Andwerson v. Mantel, 49 S.W.3d 760, 765 (Mo.App. 2001) (quoting Wolfe).  Accordingly, we affirm the trial court’s judgment.

DANIEL E. SCOTT, J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

MARY W. SHEFFIELD, C.J. – CONCURS

Westrich Farms clearly limits a landowner’s ability to acquire an easement on a neighbor’s property where there is public road access but the public road is inadequate to handle large-scale farming equipment. It should be noted, that this situation may have limited applicability, and there are avenues to gain access to land for larger machinery.

Section 228.452 specifically states that where the access is “insufficiently wide” it may be widened. This means that where a private road, or easement, already exists, it may be widened if necessary. Further, another recent Missouri case examined expansion of an easement by prescription, or adverse possession, where the easement holder was exceeding the widths of the existing easement on the property in order to facilitate larger farm equipment. More on this case can be read on an earlier blog post, “Missouri Fails to Expand a Written Easement Through Adverse Possession.”

Whether in Missouri or Iowa the most effecitve and cheapest remedy for potential disputes over access to land and easements is good neighborly relations.

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Iowa Finance Authority Holds Workshops for Beginning Farmers and Military Veterans https://www.southiowalaw.com/iowa-finance-authority-holds-workshops-for-beginning-farmers-and-military-veterans/ Mon, 29 Feb 2016 06:00:00 +0000 https://www.southiowalaw.com/iowa-finance-authority-holds-workshops-for-beginning-farmers-and-military-veterans/ The Iowa Agricultural Development Division of Iowa Finance Authority is holding eight workshops around the state to educate beginning farmers and military veterans interested in farming about state and federal programs that […]

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The Iowa Agricultural Development Division of Iowa Finance Authority is holding eight workshops around the state to educate beginning farmers and military veterans interested in farming about state and federal programs that can help them start or grow their farm business.

The events are being organized in conjunction with the non-profit, Veterans In Agriculture, and others. VIA assists military veterans to succeed in Iowa agriculture.  You can learn more about this organization at www.VeteransInAgriculture.org.

A flyer with more information on the workshops is available here.

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Boundary by Acquiescence Revisited in Iowa, Again https://www.southiowalaw.com/boundary-by-acquiescence-revisited-in-iowa-again/ Sun, 17 Jan 2016 06:00:00 +0000 https://www.southiowalaw.com/boundary-by-acquiescence-revisited-in-iowa-again/ Boundary disputes are not uncommon. They often occur when someone purchases land and then learns that a fence or other boundary marker is not quite where it should be according to the […]

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Boundary disputes are not uncommon. They often occur when someone purchases land and then learns that a fence or other boundary marker is not quite where it should be according to the survey. These disputes are often settled through a legal doctrine referred to as boundary by acquiescence. The Iowa Court of Appeals recently addressed this doctrine in Nafziger vs. Pender and Smith.

The Nafzigers purchased land, conducted a survey, and found that the boundary is actually about 30 feet north of where the current fence is that divides their land from that of the Smith’s. The Nafziger’s felt the survey should be followed and the fence removed and relocated north. The Smiths, however, asserted that because the fence had been on the property since 1992 and had been recognized by the owners of the different properties as the boundary line, it should stay where it has been.

The Smiths prevailed and the boundary was established where the fence was located instead of where the survey showed the boundary under the doctrine of acquiescence. The Court cited the definition of acquiescence as:

[T]he mutual recognition by two adjoining landowners for ten years or more that a line, definitely marked by fence or in some manner, is the dividing line between them. Acquiescence exists when both parties acknowledge and treat the line as the boundary. When the acquiescence persists for ten years the line becomes the true boundary even though a survey may show otherwise and even though neither party intended to claim more than called for by his deed.

The following are the key elements to keep in mind in determining boundary by acquiescence in Iowa:

  • there is a fence or other marking of a boundary, such as a wall or perhaps a tree line,
  • the fence or other marking is definite or clearly marks a purported boundary,
  • the marker has been in place for ten years or more, and
  • both parties have recognized the marker as the boundary.

Its important to point out that recognition by both parties does not have to be express recognition. The silence of one party, or failure to dispute the boundary, may be enough to constitute recognition.

This doctrine is of particular importance for purchasers of land. Often a survey and a corresponding boundary dispute arise after a purchase. When buying new property, purchasers need to realize that they are subject to the actions or inaction of previous owners in recognizing where boundaries are located.

Thus, its a good idea for buyers to not only have an attorney conduct a title opinion to evaluate whether the seller has good title to transfer the property but to inspect the property and compare fence lines or other boundary markers with an areal photo or plat map. If there’s any question about the boundaries, it may be prudent to have it surveyed prior to the purchase. Its also, therefore, a good idea to have a provision in the purchase agreement or contract that provides the ability to conduct a survey and to back out of the contract if the boundaries are not where they’re supposed to be.

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Drake Ag Law Center Hosts Conference On Conservation Policy https://www.southiowalaw.com/drake-ag-law-center-conference-on-conservation-policy/ Mon, 21 Sep 2015 05:00:00 +0000 https://www.southiowalaw.com/drake-ag-law-center-conference-on-conservation-policy/ The Drake University Agricultural Law Center is providing an opportunity for individuals and organizations interested in Iowa’s soil and water conservation policy to take part in a two-day conference to be held […]

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The Drake University Agricultural Law Center is providing an opportunity for individuals and organizations interested in Iowa’s soil and water conservation policy to take part in a two-day conference to be held in Des Moines on November 19th and 20th.

The Center, with support from the Leopold Center for Sustainable Agriculture, will host a state-wide conference on soil and water conservation policy. The conference will facilitate discussion of the role of law and policy in conservation efforts and will involve diverse stakeholders who are all working to protect Iowa’s soil and water resources.

Sustaining Our Iowa Land
The Past, Present and Future of Iowa’s Soil and Water Conservation Policy
Nov. 19-20, 2015
Olmsted Center, Drake University

In addition to more than 30 speakers, the conference will include a dinner and awards ceremony honoring individuals for their leadership as Stewards of Iowa’s Land.

Registration prior to October 19 is $125.  After October 19 is $150.

You can learn more about the 2015 SOIL Conference including an updated list of speakers and topics, visit Drake Ag Law Center.

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Land Contracts for Farmland: Advantages and Risks https://www.southiowalaw.com/land-contracts-for-farmland-advantages-and-risks/ Fri, 03 Jul 2015 05:00:00 +0000 https://www.southiowalaw.com/262-2/ Land contracts for farmland, in which a farm is sold by an owner in exchange for payments over a set period of time, appear to once again be gaining popularity with beginning […]

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Land contracts for farmland, in which a farm is sold by an owner in exchange for payments over a set period of time, appear to once again be gaining popularity with beginning farmers. Purchasing farmland with an installment contract can be beneficial for farmers with poor or no credit, but it also comes with risks that should be evaluated and for which planning is essential.

What Are Land Contracts

Land contracts, commonly called installment land contracts, contracts for deed, or land sale contracts, are real estate transactions where the buyer, or vendee, makes a down payment followed by periodic payments and the seller, or vendor, retains title to the property until all of the payments have been made.  These are also sometimes referred to as owner-financed real estate sales.

The buyer is considered to have equitable title in the land while making payments.  This means the buyer has the right of possession and use of the property as well as the right to exclude others from the land.  It is important to note, that these rights can be limited or altered according to the provisions of the contract.  Along with the benefits of possessing and using the land the buyer also accepts the responsibilities of land ownership, including paying taxes, maintaining insurance, and making repairs.  Once the final payment is made, the seller provides the buyer with legal title to the property by turning over a deed to the buyer.

The use of installment land contracts has decreased  over the last few decades, but it does continue to hold appeal for certain operator demographics, particularly those lacking large amounts of capital and access to financing from lending institutions. It is imperative that landowners and farmers understand the advantages, risks, and legal consequences of using installment contracts.

Advantages of Land Contracts

The primary advantage for a buyer is purchasing land for which they might otherwise not be able to acquire financing.  This is made possible by:

  • lower or no down payments,
  • lower closing costs as banks and realtors may not be involved, and
  • a lack of formal applications and underwriting processes

These advantages may be particularly important to farmers involved in niche markets, direct marketing, and value added agriculture as some lenders may not have underwriting procedures for such farm businesses. Further, farmers may be able to take advantage of these opportunities from landowners and angel investors that are concerned less about getting a return than supporting a beginning farmer or sustainable agricultural practices.

There are also advantages for the seller, including:

  • steady income for the duration of the contract,
  • interest earned on the financing, and
  • distribution of tax liability over several years.

Remember, the seller also retains legal title to the property, which provides security in case the buyer defaults on the land contract.

Risks Inherent In Land Contracts

The primary risk for buyers is forfeiture. This results in the loss of the property along with any equity and improvements made to the land and buildings.  This can have a devastating effect on any buyer, but particularly those who have significant equity and labor in the land and facilities.

There are legal protections against forfeiture, but these vary greatly from one state to the next.  Most states have a mandatory grace period. Iowa requires sellers provide notice of forfeiture, which specifies the violation and gives 30 days to cure the default.  Missouri requires a foreclosure process, which may take two to three months.

The parties to the contract are free to agree to terms as they see fit.  Thus, even if not required by state law, the contract can require a grace period, a foreclosure process, or other safeguard.

Farmers can also mitigate losses due to a forfeiture by requiring reimbursement for the non-depreciated value of  attached improvements.  Sellers, in turn, will likely want to include provisions requiring permission before improvements, for which they may be obligated to provide reimbursement, can be constructed.  Contract terms can also provide clarification of ownership and the right to remove more mobile improvements, such as hoop houses.

The principal risk for the seller is that the buyer may not pay.  Landowners may be particularly worried about this risk in relation to beginning farmers.  However, as discussed above, sellers often have the remedy of forfeiture, a very powerful tool that greatly reduces a seller’s risk.  Where forfeiture is not available the USDA Guarantee Incentive program discussed below may be particularly beneficial.

Its important to note, the right of forfeiture does not completely reduce a seller’s risk and can actually create a loss for the seller as well.  For instance, in the 1980s many retired farmers that sold land on contract just prior to the farm crisis, were stuck without income because their buyers couldn’t pay and, after forfeiture, owning land with drastically reduced market value.  These circumstances are rare but still worth consideration.  Again, the USDA Guarantee Program may be helpful in such situations.

Installment Contract Provisions

As a contract the buyer and seller are, in large part, free to establish the rights and obligations of each party within the terms of the agreement itself.

Typical provisions require the buyer to make specified payment amounts at particular times or intervals, to pay taxes and assessments, and to maintain insurance on the premises.  The seller is required to convey the property to the buyer, usually through a warranty deed, and to provide an abstract showing good title at the time of contract formation.

A principal feature of land contracts, the forfeiture clause allows the seller to terminate the contract, regain possession, and retain the buyer’s prior payments if the seller defaults on the contract.  This clause and other terms relating to default are discussed further in “The Risks” section.

A due on sale clause requires payment in full if the buyer sells their interest in the property.  If financing is unavailable to fulfill this term, a beginning farmer’s ability to cut their losses if unsuccessful is limited.

This clause is common if sellers are using the contract payments as retirement income.  This limits a farmer’s opportunity to decrease the total interest they will pay.

There are many other provisions that can play a critical role in the agreement depending on specific circumstances. An licensed attorney in the state in which the land is situated should be contacted for advice.

Government Land Contract Incentive Programs

There are programs that encourage landowners to sell land to beginning farmers on contract.  These programs exist at the state and federal level.

Aggie Bond programs are a state-federal partnership providing landowners with a federal tax exemption for interest earned on land contract payments.  Iowa and Missouri also exempt interest from state income taxes.

The USDA Farm Service Agency offers a Land Contract Guarantee Program with two options for landowners. First, is the “prompt payment guarantee.”  This guarantee covers up to the amount of three amortized annual installments or three annual installments plus the cost of any related real estate taxes and insurance.  Second, the “standard guarantee plan” covers an amount equal to 90 percent of the outstanding principal of the loan.  More information can be obtained from Local USDA Service Centers.

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Addressing Conservation In a Farm Lease https://www.southiowalaw.com/addressing-conservation-in-a-farm-lease/ Wed, 10 Jun 2015 05:00:00 +0000 https://www.southiowalaw.com/addressing-conservation-in-a-farm-lease/ Whether you’re a farmer or a landowner, addressing conservation and sustainability in a farm lease can be a tricky subject. Tenants and landlords sometimes choose to ignore issues that they believe may […]

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Whether you’re a farmer or a landowner, addressing conservation and sustainability in a farm lease can be a tricky subject. Tenants and landlords sometimes choose to ignore issues that they believe may create conflicts in the landlord-tenant relationship. This is particularly true with farm leases, which are often between neighbors, family members, and long-time friends. However, both parties do have an interest in ensuring the sustainability of the land, and discussing and including conservation provisions in a farm lease can be beneficial for both parties and the land.

This post is intended to provide an introduction to some key factors to consider when addressing conservation concerns, or sustainability, in a farm lease arrangement. Further information is available through the Drake Agricultural Law Center, and the non-profit, Women, Food and Agriculture Network (WFAN) has a “Women Caring for the Land” program dedicated to assisting women landowners with conservation efforts.

Understanding Farm Leases and Conservation

Before discussing how you can put conservation provisions in your farm lease its a good idea to have a basic understanding of farm lease contracts and conservation practices and improvements. Again, the resources listed above provide further information on these topics.

Conservation Priorities

Conservation concerns can be limited to on-farm issues, such as preventing erosion and ensuring soil nutrition. Many farmers and landowners also have a conservation ethic relating to issues that extend beyond the farm gate, such as improving water quality or enhancing wildlife habitat. Its a good idea to speak with county USDA Natural Resources Conservation Service (NRCS) personnel for information about conservation ideas on your farmland. This may help identify your own personal conservation priorities and gain an understanding of what is necessary to address those conservation goals to ensure the sustainability of your farm and minimize negative environmental effects.

One of the most important aspects to understand about conservation practices in a farm lease arrangement is that some conservation efforts provide short-term benefits and others provide long-term benefits. This distinction is significant as it should be taken into consideration when determining how long the lease will be for and who will pay the costs of such conservation practices and improvements.

Farm Lease Basics

Farm leases are contracts. As a contract, the lease must have certain provisions to be enforceable. This includes:

  1. Identification of the parties (the tenant and the landlord).
  2. The amount of rent paid.
  3. The property leased to the tenant.
  4. The duration or term of the lease.

There are many other provisions that can have a substantial impact on the rights, duties, and liability of each party, which should be considered, and preferably, addressed by a licensed attorney.

Its important to point out that farm leases do not have to be written to be enforceable. However, written leases are helpful for establishing the rights and obligations of each party and avoiding misunderstandings and conflicts in the future. This can save time, money, and hurt feelings. It should also be noted that an oral lease is only enforceable as a year to year lease. To have an enforceable farm lease for more than one year it must be in writing.

States also have laws that specifically address farm lease issues as well as soil conservation and water quality. Both Iowa and Missouri have such laws. These laws do need to be considered when developing a written farm lease.

Communication Between Farmer and Landowner

This can be the most difficult hurdle to overcome in addressing conservation in a farm lease. Both farm tenant and landlords can be reluctant to initiate a conversation about conservation. These are a few pointers that can get the discussion started.

  • Understand the other parties perspective.
  • Convey that you understand the financial, time, or other constraints of the other party.
  • Approach negotiations in good faith, realizing that conservation may cost both parties.
  • Start the conversation by asking how you can help conserve farm resources.

Ultimately, the landowner is in control of the long-term decisions for farmland. It is the landowner that chooses the tenant and can place restrictions, as well as incentives, within the lease contract. While the landowner does have the final say, the farmer often has the knowledge and skill to implement conservation practices that are agreed upon by both parties.

Farm Lease Conservation Provisions

Landlords and tenants can agree to just about any terms they wish in a farm lease arrangement, provided its for a legal purpose. This means there are an unlimited number of provisions addressing conservation and sustainability that can be incorporated into a farm lease. The terms governing conservation on a rented farm should be developed from the conservation concerns and priorities of the landowner and farmer and should be written or reviewed by a licensed attorney.

Landowners and tenants can address issues including, but not limited to:

  • cover crops, including timing, cost, and destruction of the plants,
  • maintenance of existing conservation improvements, such as terraces, grass waterways, and buffer strips,
  • requirements for controlling erosion, such as contour farming,
  • tillage practices, whether conservation tillage or no-till,
  • amount and timing of application of fertilizer and other nutrients,
  • crop rotations,
  • livestock access to water sources, particularly stream banks and ponds.

These are just a few examples of conservation issues that can be a addressed in a farm lease contract. Again, the provisions that will work for your farmland will depend on your own priorities, whether that is soil retention and nutrition, water quality, or wildlife habitat.

Its also important to realize that there are ways that landowners can incentivize farm tenants to ensure conservation and sustainability. Such incentives may include:

  • Providing longer lease terms of 3, 5, or even 10 years (this is particularly important for long term conservation practices and organic production).
  • Ensuring the tenant is reimbursed for unused portions of conservation improvements if the lease is terminated.
  • Cost-sharing of conservation improvements and practices, whether its paying a portion of the actual cost or reducing rent for certain conservation practices.
  • Risk-sharing encourages a farmer to adopt practices that can reduce yield but improves conservation.
  • Provisions that improve communication may be the best incentive to ensure conservation. Landowners and tenants who communicate have more confidence in their tenure on a farm and are more apt to bring up conservation concerns.

A Conservation Lease Must Be Sustainable

Perhaps the most important aspect of a lease that helps ensure conservation is that it works for both parties. To be sustainable it must address each parties conservation concerns, but it also must ensure a profitable arrangement for both parties. This often means it needs to be tailored to the often unique needs of each party and to the land itself.

I’m often asked if there is a sample conservation farm lease or a template. There are form leases available from Extension offices, online legal forms marketers, and others, but such lease forms should be seen as a place from which to start. There is no one way to farm that promotes conservation and there is no one lease that will address all of the conservation needs in a farm lease arrangement. It will take prioritizing your concerns, discussing them with the other party, and working with an adviser to formulate the best plan for your farm land.

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The Sallee Case is Back With No Fault Found In Farm Owners https://www.southiowalaw.com/the-sallee-case-is-back-with-no-fault-found-in-farm-owners/ Tue, 26 May 2015 05:00:00 +0000 https://www.southiowalaw.com/the-sallee-case-is-back-with-no-fault-found-in-farm-owners/ More than two years ago Sallee v. Stewart made headlines when the Iowa Supreme Court ruled the state’s “recreational use statute” did not apply to a chaperone who was injured while supervising […]

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More than two years ago Sallee v. Stewart made headlines when the Iowa Supreme Court ruled the state’s “recreational use statute” did not apply to a chaperone who was injured while supervising children playing in a barn. Recreational use statutes provide protection against negligence claims for landowners who open their land to the public. The case received a great deal of attention from farmers, insurance providers, educators, and the Iowa legislature.  Within a few months of the Supreme Court opinion, legislators attempted to broaden Iowa’s recreational use statute and specifically included protection for landowners hosting educational activities.  More detailed information is available on the Sallee opinion and the resulting legislation.

After deciding the protections of the recreational use statute did not apply in Sallee, the Iowa Supreme Court remanded the case back to the district court for trial. The facts of the case are fairly straight forward. Sallee was a chaperone for a group of kindergarten students invited to tour a dairy farm. At the close of the tour the children were allowed to enter a barn to play in the hayloft. While supervising the children, Sallee stood on a bale covering a hay chute. The bale gave way and Sallee fell through the chute and broke her leg.

On remand a jury found the farm owners were not at fault in the chaperone’s fall. Sallee appealed the verdict, and the Iowa Court of Appeals affirmed the district court ruling. While Sallee raised several issues on appeal, including claims regarding improper statements and instructions to the jury, perhaps the most significant finding from the case is that, even without application of the recreational use statute, the jury found the landowners were not negligent.

The Issue of Landowner Negligence

The finding of a lack of negligence on the part of the landowners is important for a couple of reasons. First, it demonstrates that landowners do in fact have to violate a duty of care before someone can successfully bring a negligence lawsuit against them. After the Supreme Court opinion found the recreational use statute did not apply, there was a great deal of concern that landowners would be responsible for any accidents that occurred on their property. This is not the case, and its important for landowners and their advisers to understand that there must be some negligent act or omission before they can be found responsible for accidents on their property.

Second, it confirms that landowners are largely in control over their exposure to premises liability. Once the facts were submitted to a jury for evaluation, the jury members found the Stewarts had taken reasonable steps to ensure the premises were safe and had not been negligent in their actions. The evidence produced by the Stewarts to support their defense included testimony that Mr. Stewart had inspected the barn for any unsafe conditions, covered the schutes with hay bales, stood on the bales to ensure they could support the weight of an adult, and warned the attendees to stay aware from areas of the barn he determined could be unsafe. Through inspections, making conditions safe to the extent reasonably possible, and warning of potential dangers, landowners do have control over their exposure to successful lawsuits.

Its important to point out that this case does not represent the proposition that one cannot be sued for accidents on one’s property, even if not at fault. Anyone can bring a lawsuit, even if it is not ultimately successful. Therefore, it is important to speak with your insurance agent to ensure activities on your property are covered and that your insurance will pay for the costs of a lawsuit. In order to further limit exposure to lawsuits you may consult with an attorney prior to having visitors on your land or farm.

It should also be noted that the jury’s finding in this case does not mean that there is no value to the recreational use statute. The protections provided by the statute are still significant as they do limit the liability for negligent acts, which occur while members of the public are in fact enjoying activities covered by the recreational use statute. The statute is also beneficial as it allows a case, which in fact involves statutorily protected activity, to be dismissed by a judge before going to trial. This saves substantial time, attorney fees, and court costs. The scope of the protections provided by the revised statute, however, are largely undetermined as the revisions have not yet been interpreted by the courts. Again, more detail on the potential affects of the legislative revisions is available.

 Comparative Fault Instructions

In the appeal, Sallee also contended that the jury improperly received instructions regarding comparative fault, which allows a jury to allocate fault to each party. Sallee claimed there was no evidence presented that indicated her injuries were caused by any fault of her own. The court differed, however, finding that evidence was presented that she disobeyed the instructions provided by Mr. Stewart to stay in the middle of the barn. The court also noted that even if the instruction was inappropriate, it was harmless as the jury specifically found no fault in the Stewarts.

Negligent Misrepresentation Instruction

Sallee also appealed on grounds that the jury was not properly instructed regarding negligent misrepresentation. Sallee claimed that the Stewarts represented that the farm was safe and that they guaranteed the safety of the hayloft by assuring her that the ladder leading to the hayloft would support her. The appellate court declined to accept this theory of implied representations and found that the Stewarts had not provided any false information that could render them subject to negligent misrepresentation. The district court, therefore, properly omitted these instructions to the jury.

Tour Guide Liability Instruction

At trial Sallee requested that an instruction be given to the jury regarding tour guide liability, proposing the Stewarts had acted as tour guides and had negligently failed to provide the standard of care owed by a tour guide. The district court did not instruct the jury on tour guide liability. On appeal, the court quickly disposed of this argument finding that the proposed tour guide liability instruction virtually mirrored that of the instruction given to the jury regarding the determination of whether the Stewarts were at fault, and it was not, therefore, necessary to have a separate instruction.

Statements Regarding Medical Plan Payments

Finally, the court addressed Sallee’s claim that the defense attorney inappropriately provided information to the jury in her opening statements about insurance payments received by Sallee for the accident. Sallee’s attorney contended on appeal that this could have swayed the jury’s decision, and a new trial should be held. The appellate court found that Sallee’s attorney did not object to this information in a timely manner and, therefore, could not raise the issue on appeal.

Sallee also argued that an instruction regarding the determination of damages, which mentioned medical plan payments, also biased the jury. The court found that because the jury never reached the issue of damages, this instruction did not prejudice Sallee.

Conclusion

Sallee v. Stewart could again be appealed to the Iowa Supreme Court, though it is uncertain whether it would again be heard by the justices. The case created a significant amount of concern for landowners and resulted in the expansion of Iowa’s recreational use statute. It will remain, however, for another case to be brought before the court to determine how broadly the revised statute will be interpreted.

The post The Sallee Case is Back With No Fault Found In Farm Owners appeared first on Orsborn, Mitchell, Goedken & Larson, PC.

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Ensuring Your Farm Meets Conservation Compliance https://www.southiowalaw.com/231-2/ Thu, 07 May 2015 05:00:00 +0000 https://www.southiowalaw.com/231-2/ June 1 is the deadline to be compliant with conservation requirements in order to be eligible for federal crop insurance premium subsidies and other USDA programs. The USDA Natural Resources Conservation Service […]

The post Ensuring Your Farm Meets Conservation Compliance appeared first on Orsborn, Mitchell, Goedken & Larson, PC.

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June 1 is the deadline to be compliant with conservation requirements in order to be eligible for federal crop insurance premium subsidies and other USDA programs. The USDA Natural Resources Conservation Service (NRCS) just released a brief resource for checking to ensure your farm meets Conservation Compliance requirements.  You can view the full resource on the NRCS website, and a brief summary is provided below.

Conservation compliance means complying with the requirements for highly erodible lands (HEL) and wetlands. Farmers who have HEL or wetlands must comply with requirements to be eligible to receive many USDA benefits, including loans, disaster assistance, federal crop insurance premium subsidies and conservation assistance.

1.  Check whether Conservation Compliance applies to you.

Conservation compliance applies to any person seeking benefits from certain USDA programs, including Farm Service Agency (FSA) loans and disaster assistance, Natural Resources Conservation Service (NRCS) and FSA conservation programs, and Risk Management Agency (RMA) federal crop insurance premium subsidies. If you’re seeking federal crop insurance premium subsidies for the 2016 reinsurance year, which runs from July 1, 2015 to June 30, 2016, you must be in compliance by June 1.

If you grow commodity crops and you have wetlands or highly erodible land, you may need additional assistance from FSA and NRCS to meet conservation compliance provisions. Commodity crops include any crop planted and produced by annual tilling of the soil, including one-trip planters or sugarcane.

2.  Check whether you are in compliance.

You must file form AD-1026 to initiate the compliance process.  If you are uncertain whether you have previously filed the form, contact your local FSA office to see if you have the form on file and are in compliance with the provisions.

3.  Complete form AD-1026.

Form AD-1026 is a compliance certificate used to:

  • Inform you of highly erodible land and wetlands requirements;
  • Certify compliance with those requirements;
  • Identify you and anyone else who needs to complete the form; and
  • Provide authorization for USDA representatives to service your determination request and check compliance.

Any person seeking a USDA program benefit must complete, sign and file form AD-1026 with FSA. Additionally, any affiliated person who has a separate farming interest must also complete, sign and file form AD-1026.
When you file form AD-1026, you are certifying that you will not:

  • Plant or produce an agricultural commodity on highly erodible land without following an NRCS approved conservation plan or system;
  • Plant or produce an agricultural commodity on a converted wetland; or
  • Convert a wetland to make the production of an agricultural commodity possible.

Once the form is accurately completed and filed, it remains effective, and a person does not have to refile or update the form again, unless there are changes to the operation or new activities that occur that affect the person’s certification. The form is not specific to a particular crop. It covers all land that a producer farms.

If you have already filed form AD-1026 and are still in compliance, you have already met your filing requirement, and no further action is needed.

4.  Comply, if needed.

If your land does need a highly erodible land or wetlands determination, FSA will forward your form AD-1026 to NRCS, the agency responsible for making determinations. Determining whether you have highly erodible land is a simple process based on soil types. Determining whether you have wetlands on your property is a bit more complicated. In many instances, a field visit is needed to look at the soils, plants and hydrology of the site in question.

If needed, NRCS will work with you to develop a conservation plan for protecting highly erodible fields. This plan describes the conservation practices that may be needed to control soil erosion on highly erodible fields.

If you have wetlands on your land, you have a number of options, including leaving the wet areas unaltered, enrolling the land in a voluntary conservation program if eligible, and mitigating for wetland losses.

5.  Ensure your farm stays in compliance.

Ensure Your Farm Stays in Compliance: You remain in compliance by following the provisions of form AD-1026, any conservation plan you have, and any allowable wetland management options.

Learn More

Be sure to check out USDA’s conservation compliance webpage, which has frequently asked questions, fact sheets and many other resources.

The post Ensuring Your Farm Meets Conservation Compliance appeared first on Orsborn, Mitchell, Goedken & Larson, PC.

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