Recent Blog Posts

Legal GroundworkBy Robert Moore, Attorney and Research Specialist, OSU Agricultural & Resource Law Program

The relationship between farmland owner and tenant often goes beyond just a business transaction.  It is common for the tenant to lease the same farmland for many years or for the tenant/landowner relationship to span several generations.  The relationship between the parties may evolve into one of great trust and respect – the landowner knowing that the tenant will treat the land like their own and the tenant knowing the landlord will always be fair with them.

Sometimes, when the landowner knows that their heirs do not have interest in owning the land, they will promise to give the tenant the first chance to buy the farm at landowner’s death.  Tenants will always appreciate this gesture so that they do not have to outbid their neighbors at a public auction when the landowner dies.  However, a mere promise is not enough.  To protect the tenant’s right to purchase the farm, the landowner must take proactive measures.

Under Ohio law, and every other state, verbal promises regarding real estate are rarely enforceable.  Because real estate is such an important asset, courts do not want to have to guess as to what a buyer and seller may have agreed upon.  So, in most situations, if it is not in writing, a court will not enforce verbal promises regarding real estate.

Example.  Landowner has leased her land to Tenant for 25 years and verbally promised that when she dies Tenant will get to buy her farm.  Upon her death, her heirs do not want to sell to Tenant because they think they will get more at auction.  Because Landlord’s promise was only verbal, the heirs can ignore Tenant and sell at auction.

So, what can be done to ensure that a landlord’s desire for a tenant to buy the farm is enforceable?  The following are options available to Landlord and Tenant.

 

Will or Trust

The landlord can include a provision in their will or trust giving the tenant the right to buy the farm.  Upon landlord’s death, the trustee or executor will be obligated to sell the land to the tenant.  This is an easy solution to give the tenant a chance to buy the farm.  However, it is not a perfect solution.

Wills and trusts can be changed at any time.  The tenant has no guarantee that a landlord will not change their will or trust and remove the purchase provision.  For as long as the landowner has mental capacity, they can change their will or trust anytime they wish.  So, while putting the purchase option in the will or trust is better than a verbal promise, it is not a guarantee the tenant will have a chance to buy the farm.

Practice Pointer.  When giving a tenant the right to purchase a farm, consider also providing them with a small amount of money from the estate/trust.  By giving them even $100, the tenant becomes a beneficiary of the estate/trust and is entitled to be informed of all aspects of the administration.  There could be some dispute as to whether the tenant is a beneficiary of the estate/trust if they only have purchase rights.  A beneficiary of an estate/trust has certain rights that a mere buyer would not have.

 

Right of First Refusal

For the tenant, a better strategy may be to enter into a Right of First Refusal (ROFR) with the landowner.   A ROFR is an agreement that gives the tenant the chance to buy land at the landowner’s death or before the landowner can transfer it.   The ROFR includes a provision that makes it binding upon the landowner and their heirs so that the ROFR survives the landowner’s death.  Upon the landowner's death and before the land can be transferred to heirs, the ROFR is triggered and tenant can decide if they wish to buy the land.  The ROFR should be signed by both parties, notarized and recorded.

Example.  Landowner wants to ensure that Tenant has a chance to buy her farm when she passes away.  Landowner and Tenant execute a ROFR that states upon Landowner’s death, Tenant will have a chance to buy the land at appraised value.  The ROFR is made binding upon the Landowner’s heirs and recorded.  When Landowner dies, the purchase provision in the ROFR will be triggered and Tenant will have an opportunity to buy the land.

The disadvantage of the ROFR for the landowner is that it cannot be changed.  The ROFR is a contract and once signed cannot be changed without the tenant’s consent.  If the landowner wants to keep the option to change their mind regarding the sale of the farm, they should not enter into a ROFR but opt for the will/trust strategy instead.

 

Purchase Terms

Regardless of which of the aforementioned strategies are used, time and effort should be spent specifying the purchase terms.  The will/trust or ROFR should include specific language addressing the following:

  • Identify the Property.  Use parcel numbers, legal descriptions, FSA farm numbers and/or acreage to specify what land is being offered for sale.  Do not leave any room for misunderstandings of what land is being offered to the tenant.  Avoid using only farm names to identify (i.e. “Smith Farm”)
  • Purchase Price.  Clearly state how the purchase price is determined.  If by appraisal, consider using a licensed, certified appraiser to avoid any perception that the appraiser favors one party or the other.  Also consider including a three-step appraisal process allowing either party to get their own appraisal if they dispute the original appraisal.  A flat price can be used for the purchase price but the parties risk the flat price not adjusting to market conditions.  The landowner may also include a discount % on the purchase price to help the tenant.
  • Deadlines.  The purchase terms should give the tenant a specific number of days to decide if they want to purchase the farm.  This term should begin to run after the purchase price has been established.  The tenant should be required to exercise their purchase option by giving written notice to the estate/trust.  A closing date should also be set, usually a specific number of days after the tenant has provided the written notice to purchase.
  • Other Purchase Terms.  Include any other purchase terms like title insurance and transaction costs.

 

Summary

Landowners and tenants should not rely on verbal promises for the purchase of the farm at landowner’s death.  Using either a will/trust or ROFR can ensure that a tenant will have a legally enforceable right to purchase the farm.  When drafting the will/trust or ROFR, include specific purchase terms to avoid conflict between the tenant and the landowner’s heirs.  The parties should seek legal counsel to assist in drafting the documents to be sure that all legal requirements are met.

Signficant surface water draining across farm field
By: Peggy Kirk Hall, Wednesday, May 18th, 2022

We can count on legal questions about surface water drainage to flow steadily in the Spring, and this year is no exception.  Spring rains can cause drainage changes made on one person’s land to show up as harm on another’s land.  When that happens, is the person who altered the flow of surface water liable for that harm?  Possibly.  Here is a reminder of how Ohio law deals with surface water drainage problems and allocates liability for drainage interferences, followed by guidance on how to deal with a drainage dispute.

Ohio law allows landowners to change surface water drainage

Back in 1980, the Ohio Supreme Court adopted a new rule for resolving surface water disputes in the case of McGlashan v. Spade Rockledge.  Previous Ohio law treated water as a “common enemy” to be pushed onto others, then absolutely prohibited any land changes that would increase surface water drainage for lower landowners.  In McGlashan, the Court replaced these old laws with the “reasonable use rule” that remains the law in Ohio.  The rule states that landowners do have a right to interfere with the natural flow of surface waters on their property, even if those changes are to the detriment of other landowners.  But the right to alter drainage is limited to only those actions that are “reasonable.”

Drainage changes must be “reasonable”

Although it allows drainage changes, the reasonable use doctrine also states that landowners incur liability when their interference with surface water drainage is “unreasonable.”   What does that mean?  The law contains factors that help clarify when an interference is unreasonable, a determination made on a case-by-case basis.  The factors attempt to balance the need for the land use change that altered drainage against the negative impacts that change has on other landowners.  A court will examine four factors to determine whether the drainage change is unreasonable:  the utility of the land use, the gravity of the harm, the practicality of avoiding that harm, and unfairness to other landowners.    For example, if a land use change has low utility but causes drainage harm to other landowners, or the landowner could take measures to prevent unfair harm to others, a court might deem the landowner’s interference with drainage as “unreasonable.”

What to do if a neighbor’s drainage is causing harm?  

The unfortunate reality of the reasonable use doctrine is that it requires litigation, forcing the harmed party to file an action claiming that the neighbor has acted unreasonably.  Before jumping into litigation, other actions might resolve the problem.  An important first step is to understand the physical nature of the problem.  Can the cause of the increased flow be remedied with physical changes?  Is there a simple change that could reduce the interference, or is there need for a larger-scale drainage solution?  Identifying the source of the harm and the magnitude of the drainage need can lead to solutions.  Involving the local soil and water conservation district or a drainage engineer might be necessary. 

Based on the significance of the solutions necessary to eliminate the problem, several options are available:

  • If identified changes would remedy the problem, a talk with a drainage expert or a letter from an attorney explaining the reasonable use doctrine and demanding the changes could encourage the offending landowner to resolve the problem.  If the landowner still refuses to remedy the problem, litigation is the last resort.  The threat of litigation often spurs people into action.
  • Sometimes the issue is one that requires collaboration by multiple landowners.  Identifying a solution and sharing its costs among landowners, based on acreage draining into the area, can be a way to solve the problem.
  • For more substantial drainage problems, a petition for a drainage improvement with the soil and water conservation district or the county engineer might be necessary.  Petitioned drainage improvements involve all landowners in the affected area and are financed through assessments on land within that area.  A visit with those agencies would determine whether a petition improvement is necessary and if so, how to proceed with the petition.
  • For smaller fixes, a landowner always has the option of filing a claim for damages through the small claims court.  The estimated damages or repairs must fall below the $6,000 limit for small claims.  A landowner can make the claim without the assistance of an attorney, and the dispute could be resolved more quickly through this forum.

As the Spring rains continue, keep in mind that the reasonable use doctrine sets a guideline for Ohio landowners:  make only reasonable changes to your surface water drainage and don’t cause an unreasonable drainage problem for your neighbors.  Where changes and interferences are unreasonable and landowners are unwilling to resolve them, the reasonable use doctrine is the last resort that provides the legal remedy for resolving the problem.

For more information on Ohio drainage law, refer to our law bulletin on Surface Water Drainage Rights

Legal GroundworkBy Robert Moore, Attorney and Research Specialist, OSU Agricultural & Resource Law Program

 

Establishing a new entity in Ohio is relatively easy.  The first step is to submit an application to the Ohio Secretary of State along with a $99 fee.  This application can be done online with the fee being paid with a credit card.  For an LLC, the application only needs to include the name of the entity and the name and address of a contact person.  Applications for corporations and other entities may require a bit more information but nothing overly burdensome.  The Secretary of State reviews the application and either approves the application or rejects and provides information as to what needs corrected. 

Upon approving the application, the Secretary of State will issue an Articles of Organization certificate, or similar document, for each new entity.  This certificate is confirmation that the state of Ohio recognizes the entity, and it is permitted to conduct business in Ohio.  Upon the entity being registered, business documents such as operating agreements and ownership certificates should be completed. 

Usually, a few weeks after registering a new entity, credit card applications will begin to show up.  As mentioned previously, each new entity must provide the name and address of a contact person for the entity.  The name and address are publicly available on the Secretary of State’s website.  Credit card companies retrieve this information and send applications hoping the new entity needs a credit card to conduct business.  Credit card companies are not the only solicitors to use the contact information. 

The credit card applications are easily identifiable, obvious in their intent and can be easily discarded if not needed.  However, a more nefarious letter is likely to show up as well.  It is common for new entities to receive an envelope that looks like it is from an official government entity.  Upon opening the letter, a form that also looks official will request $67.50, $90 or some other amount for a copy of the certificate of organization or certificate of good standing.  Upon first glance, the letter and enclosed form looks like something you would receive from a government agency. 

The certificate of organization will be provided to the new entity upon registration.  At any time, a copy of the certificate of organization can be obtained from the Ohio Secretary of State web site for no cost. A certificate of good standing, sometimes requested by lenders, can be obtained from the Secretary of State for $5.  The certificate of good standing merely states the entity is still registered with Secretary of State.  The point being, there is likely no reason to pay a company for the articles of organization or a certificate of good standing. 

There is nothing illegal about the letters requesting money for a certificate of organization.  If you look closely at the form, somewhere it will say it is not from a government agency.  If someone wants to pay $90 for a certificate that is provided for free by the Secretary of State they are within their rights to do so.   

The intent of this article is to make new business entity owners aware that they do not need to spend extra money on certificates after their entity is registered with the state.  Paying for the requested certificates is probably just a waste of money.  Unfortunately, people who are registering entities for the first time are often not aware of what is required by the state and just assume they are required to pay the extra fees.  If in doubt, contact your attorney. 

 

Below is an example form letter requesting $67.50 for a certificate of good standing.  You will need to look closely to find the disclaimer that it is not from a government agency. 

 

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paved bikeway with cyclists and hikers on ohio rural land.
By: Peggy Kirk Hall, Friday, May 06th, 2022

An appeals court ruling now stands in the way of a bikeway project begun more than 27 years ago by the Mill Creek Metropolitan Park District (MetroParks) in Mahoning County.  The Seventh District Court of Appeals recently ruled that MetroParks did not have the power of eminent domain when it attempted to acquire undeveloped stretches of the bikeway.  Several landowners have challenged MetroPark’s use of eminent domain for the project over the years, but this is the first case to yield a positive outcome for landowners who have not wanted the bikeway on their properties.  We take a closer look at the decision in today’s post.

The case

The court case began in 2019, when MetroParks offered landowner Diane Less $13,650 for a permanent easement for construction of the bikeway across her land.  When the landowner did not agree to the conveyance, MetroParks filed an eminent domain proceeding in the Mahoning County Court of Common Pleas.  The landowner responded that MetroParks did not have authority to use eminent domain for the bikeway project and attempted to have the case dismissed through a summary judgment motion.  The trial court found that MetroParks was authorized to appropriate the property for the bikeway and denied the motion, and the landowner appealed.

The appellate court began its review of the case by pointing out that whenever Ohio’s legislature grants the power of eminent domain to a subdivision of the state, that grant must be “strictly construed” and any doubts about the right must be resolved in favor of the property owner.  An entity like a park district has eminent domain authority (also referred to as appropriation or takings) only when the Ohio legislature grants the power in statutory law.  MetroParks relied on Ohio Revised Code 1545.11 as the grant of power to acquire the bikeway land by eminent domain.  That statute states:

The board of park commissioners may acquire lands either within or without the park district for conversion into forest reserves and for the conservation of the natural resources of the state, including streams, lakes, submerged lands, and swamplands, and to those ends may create parks, parkways, forest reservations, and other reservations and afforest, develop, improve, protect, and promote the use of the same in such manner as the board deems conducive to the general welfare. Such lands may be acquired by such board, on behalf of said district, (1) by gift or devise, (2) by purchase for cash, by purchase by installment payments with or without a mortgage, by entering into lease-purchase agreements, by lease with or without option to purchase, or, (3) by appropriation.

The appeals court examined MetroParks’ purpose for acquiring the land for the bikeway to determine if it met either of the authorized purposes in the statute of “conversion into forest reserves” or “conservation of natural resources.”  MetroParks explained that it established its purposes and the necessity of acquiring the bikeway land in two resolutions in 1993 and 2018.  The first resolution stated that the “public interest demanded the construction of a bicycle path” and the second stated that the bikeway “will provide local and regional users with a safe, uniformly-designed, multi-use, off-road trail facility dedicated for public transportation and recreational purposes.”

According to the court, however, both resolutions failed to relate the necessity of the bikeway to the purposes in the statute of acquiring land “for conversion into forest reserves and for the conservation of the natural resources of the state.”  The court noted other Ohio court decisions that do conclude that a bikeway meets the purpose of acquiring land for the “conservation of natural resources” when it “supplies a human need,” “contributes to the health, welfare, and benefit of the community” and is “essential for the well-being of such community and the proper enjoyment of its property.” But important to the landowner is the court’s statement that it disagrees with these principles, “especially when applied to a rural area where it appears the public need is speculative at best and the harm to the private property owners is great."  Reminding us that a statutory grant of eminent domain authority must be strictly construed and interpreted to favor a property owner, the court stated that prior decisions characterizing any project that serves the public and contributes to the health and welfare of the community as “conservation of natural resources” for purposes of R.C. 1545.11 is “a bit of a stretch.”

A second point the court made in questioning whether a bikeway fits within the purposes of park district land acquisition outlined in R.C. 1545.11 is that a law enacted after that statute assigned Ohio’s Department of Natural Resources the duty to plan and develop recreational trails, along with the authority to appropriate land for recreational trails.  The statute suggests that the state agency, not park districts, possesses the authority to use eminent domain to establish recreational trails and bikeways.

Despite its disagreement with the assumption that R.C. 1545.11 permits the acquisition of land for bikeways as the “conservation of natural resources,” the court reviewed the MetroParks resolutions to determine if the park’s purpose constituted the “conservation of natural resources.”  Not surprisingly, the court concluded that the resolutions were completely devoid of any purposes that met the statute’s requirements.  Creating a bikeway through an extensive acreage of family-owned farmland in a rural area does not constitute the purpose of acquiring land for “conservation of natural resources of the state,” the court stated.  Nor does providing recreation automatically equate to the conservation of natural resources.  The resolutions did not “indicate that the creation of this particular trail or bikeway is designed to promote the general health and welfare of the pubic, which we believe requires more than just a recreational purposes” and failed at “even remotely tying the creation of the bikeway to the conservation of natural resources.”

Lacking a required statutory purpose for acquiring the bikeway land, the court concluded that MetroParks abused its discretion in attempting to appropriate the landowner’s property.  The appeals court instructed the Mahoning Court of Common Pleas to grant summary judgment not only in this case, but also for a second bikeway eminent domain case the landowner was a party to with MetroParks.

Now what?

A question now before MetroParks is whether it will ask the Ohio Supreme Court to review the decision of the Seventh District Court of Appeals.  The park district board will meet on May 9 to discuss how it will proceed. 

A continuing problem

The case highlights a recurring issue with the use of eminent domain for bike paths, as this is not the only legal issue MetroParks has faced in its mission to build its bikeway.  Several other court cases have challenged the park’s eminent domain authority, though unsuccessful, and an amendment to last year’s budget bill included specific language that prohibits the use of eminent domain for recreational trails for five years in a county with a population between 220,000 and 240,00 people.  Mahoning County falls within that population range.  Recent attempts by Mahoning County legislators to enact laws that prohibit the use of eminent domain for recreational trails or give local governments the right to veto such actions have not made it through the Ohio General Assembly.  The divisive issue is clearly one that requires a closer look by our legislators.

Read the case of Mill Creek Metro. Dist. Bd. of Commrs. v. Less here.

Farmer holding clipboard with tractor in background and Legal Groundwork Series title

We discussed long-term care (LTC) costs in our April 20 blog post and analyzed recent data to project that a 65-year-old Ohioan, on average, can expect about $100,000 in LTC costs, and double that for a married couple.  In this post, we continue to examine LTC costs by addressing an important question for farmers:  can the average farmer absorb this cost without jeopardizing the farm and farm assets? 

First, we need to remember that any income received by the farmer could be spent on paying the LTC costs.  Farm income, land rent, social security income, and income from investments can all pay for LTC costs.  After income is used to pay for LTC care costs, non-farm assets, like savings, can be used to pay for the costs. It’s the portion of the LTC costs that income and savings cannot cover that causes farm assets to be at risk.  For example, if the farmer has $40,000 in savings, using that savings to pay LTC leaves only $60,000 of farm assets at risk.

Let’s next turn to the risk to farm assets.  While a farmer would never want to sell any farm asset to pay for LTC, their land is probably the last asset they would want sold.  Most farmers would sell grain, crops, livestock, and machinery before they would sell land.  So, if income and savings cannot pay for LTC care costs, how at risk is the land?  Data can also help us answer this question.  According to the Economic Research Service – USDA (ERS), the total amount of non-real estate, farm assets owned by farmers in the US for 2020 were as follows:

                        Financial Assets                                 $92,013,020,000

                        Inventory (crops, livestock, inputs)      $62,866,872,000

                        Machinery                                          $278,809,055,000

                        Total Non-Real Estate Farm Assets   $533,688,897,000

The ERS further estimates that there were 2.02 million farmers in the US in 2020.  So, on average, farmers owned $264,202 of non-real estate, farm assets.  If income and savings are unable to pay for LTC costs, the average farmer would have an additional $264,202 of assets to sell before needing to sell real estate. 

So, what does all this data tell us?  On average, if farmers are forced to sell farm assets to pay for LTC, they will not need to sell their land.  They may need to sell crops, livestock and/or machinery to help pay for the LTC costs but the land is probably safe.  That is the good news.

The bad news is the above analysis is all based on averages.  When dealing with large numbers, averages are very useful.  We can say with some confidence that on average, a 65-year-old farmer in Ohio will spend around $100,000 on LTC.  However, the numbers cannot tell us with any certainty what a specific farmer will spend on LTC. Farmer Smith in Delaware County, Ohio might never pay any LTC costs, might pay the average of $100,000 or they might be an outlier.  An outlier is someone whose specific circumstances end up being significantly different than the average.

Being an outlier is what farmers are really concerned about regarding LTC.  We all know someone, or have heard of someone, who was in a nursing home for 10 years.  That’s close to $1 million in LTC costs.  Few farmers have the income, savings and non-real estate assets to pay for $1 million of LTC. 

So, what LTC planning for farmers really ends up being is protecting against the outlier scenario that puts the land at risk.  Most 65-year-old farmers would probably sleep well at night if they knew they would only have $100,000 of LTC costs for the rest of their lives.  That amount of LTC costs is probably not going to cause a farm liquidation.  What keeps farmers up at night is the chance they will be the outlier and spend 10 years in an expensive nursing home.

The outlier scenario is important for farmers to understand as they develop their LTC strategy.  For any risk management plan, the true nature of the risk must be understood and not just presumed.  The fact is most farms can probably withstand the average LTC costs.  It is also factual that most farms cannot withstand an outlier scenario of being in a nursing home for many years.  This understanding is critical in developing a LTC plan.  That is, the LTC plan should probably seek to mitigate the risk of being an outlier, not on being average.

Fortunately, there are strategies to help mitigate the risk of losing the farm to the outlier scenario, although each of the strategies have significant drawbacks.  In future posts, we will discuss those strategies.

Oil and gas well pump.
By: Jeffrey K. Lewis, Esq., Monday, April 25th, 2022

One of the core principles of the American legal system is that people are free to enter into contracts and negotiate those terms as they see fit.  But sometimes the law prohibits certain rights from being “signed away.”  The interplay between state and federal law and the ability to contract freely can be a complex and overlapping web of regulations, laws, precedent, and even morals.  Recently, the Ohio Supreme Court ruled on a case that demonstrates the complex relationship between Ohio law and the ability of parties to negotiate certain terms within an oil and gas lease.     

The Background.  Ascent Resources-Utica, L.L.C. (“Defendant”) acquired leases to the oil and gas rights of farmland located in Jefferson County, Ohio allowing it to physically occupy the land which included the right to explore the land for oil and gas, construct wells, erect telephone lines, powerlines, and pipelines, and to build roads.  The leases also had a primary and secondary term language that specified that the leases would terminate after five years unless a well is producing oil or gas or unless Defendant had commenced drilling operations within 90 days of the expiration of the five-year term. 

After five years had passed, the owners of the farmland in Jefferson County (“Plaintiffs”) filed a lawsuit for declaratory judgment asking the Jefferson County Court of Common Pleas to find that the oil and gas leases had expired because of Defendant’s failure to produce oil or gas or to commence drilling within 90 days.  Defendant counterclaimed that the leases had not expired because it had obtained permits to drill wells on the land and had begun constructing those wells before the expiration of the leases.  Defendant also moved to stay the lawsuit, asserting that arbitration was the proper mechanism to determine whether the leases had expired, not a court. 

What is Arbitration and is it Legal?  Arbitration is a method of resolving disputes, outside of the court system, in which two contracting parties agree to settle a dispute using an independent, impartial third party (the “arbitrator”).  Arbitration usually involves presenting evidence and arguments to the arbitrator, who will then decide how the dispute should be settled.  Arbitration can be a quicker, less burdensome method of resolving a dispute. Because of this, parties to a contract will often agree to forgo their right to sue in a court of law, and instead, abide by any arbitration decision.   

Ohio law also recognizes the rights of parties to agree to use arbitration, rather than a court, to settle a dispute.  Ohio Revised Code § 2711.01(A) provides that “[a] provision in any written contract, except as provided in [§ 2711.01(B)], to settle by arbitration . . . shall be valid, irrevocable, and enforceable, except upon grounds that exist at law or in equity for the revocation of any contract.”  What this means is that Ohio will enforce arbitration clauses contained within a contract, except in limited circumstances.  One of those limited circumstances arises in Ohio Revised Code § 2711.01(B).  § 2711.01(B)(1) provides that “[s]ections 2711.01 to 2711.16 . . . do not apply to controversies involving the title to or the possession of real estate . . .”  Because land and real estate are so precious, Ohio will not enforce an arbitration clause when the controversy involves the title to or possession of land or other real estate.  

To be or not to be?  After considering the above provisions of the Ohio Revised Code, the Jefferson County Court of Common Pleas denied Defendant’s request to stay the proceedings pending arbitration.  The Common Pleas Court concluded that Plaintiffs’ claims involved the title to or possession of land and therefore was exempt from arbitration under Ohio law.  However, the Seventh District Court of Appeals disagreed with the Jefferson County court.  The Seventh District reasoned that the controversy was not about title to land or possession of land, rather it was about the termination of a lease, and therefore should be subject to the arbitration provisions within the leases.   

The case eventually made its way to the Ohio Supreme Court, which was tasked with answering one single question: is an action seeking to determine that an oil and gas lease has expired by its own terms the type of controversy “involving the title to or the possession of real estate” so that the action is exempt from arbitration under Ohio Revised Code § 2711.01(B)(1)? 

The Ohio Supreme Court determined that yes, under Ohio law, an action seeking to determine whether an oil and gas lease has expired by its own terms is not subject to arbitration.  The Ohio Supreme Court reasoned that an oil and gas lease grants the lessee a property interest in the land and constitutes a title transaction because it affects title to real estate.  Additionally, the Ohio Supreme Court found that an oil and gas lease affects the possession of land because a lessee has a vested right to the possession of the land to the extent reasonably necessary to carry out the terms of the lease.  Lastly, the Ohio Supreme Court provided that if the conditions of the primary term or secondary term of an oil and gas lease are not met, then the lease terminates, and the property interest created by the oil and gas lease reverts back to the owner/lessor.  

In reaching its holding, the Ohio Supreme Court concluded that Plaintiffs’ lawsuit is exactly the type of controversy that involves the title to or the possession of real estate.  If Plaintiffs are successful, then it will quiet title to the farmland, remove the leases as encumbrances to the property, and restore the possession of the land to the Plaintiffs.  If Plaintiffs are unsuccessful, then title to the land will remain subject to the terms of the leases which affects the transferability of the land.  Additionally, the Ohio Supreme Court concluded that if Plaintiffs were unsuccessful then Defendant would have the continued right to possess and occupy the land.  Therefore, the Ohio Supreme Court found that Plaintiffs’ controversy regarding the termination of oil and gas leases is the type of controversy that is exempt from arbitration clauses under § 2711.01(B)(1). 

Conclusion.  Although Ohio recognizes the ability of parties to freely negotiate and enter into contracts, there are cases when the law will step in to override provisions of a contract.  The determination of title to and possession of real property is one of those instances.  Such a determination can have drastic and long-lasting effects on the property rights of individuals.  Therefore, as evidenced by this Ohio Supreme Court ruling, Ohio courts will not enforce an arbitration provision when the controversy is whether or not oil and gas leases have terminated.  To read more of the Ohio Supreme Court’s Opinion visit: https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2022/2022-Ohio-869.pdf.

 

 

Farmer holding clipboard with tractor in background and Legal Groundwork Series title

By Robert Moore, Attorney and Research Specialist, OSU Agricultural & Resource Law Program

There is no doubt that Long-Term Care (LTC) costs are a financial threat to many farms.  Some farmers go to great lengths to protect their farm assets from potential LTC costs.  Protection strategies include gifting assets to family members, transferring farm assets to irrevocable trusts and buying LTC insurance.  But what do the statistics say about the actual risk to farms for LTC costs?

According to the Administration for Community Living, someone turning age 65 today has an almost 70% chance of needing some type of long-term care services in their remaining years.  Due to women having longer life expectancies, predictions are that women will need an average of 3.7 years of care and men will need 2.2 years.  While one-third of today's 65-year-olds may never need long-term care support, 20% will need it for longer than 5 years.  The following data from the ACL provides more details as to the type and length of care needed:

This table shows that of the three years of LTC needed on average, two of those years are expected to be provided at home and one year in a facility.  It is noteworthy that a majority of LTC services are typically provided at home because most people do not want to leave home for a facility, some at-home care isn’t paid for, and home care is less expensive than facility care.  Many people may think all LTC will be provided in a facility, but as the data shows, this is not usually the case.

The next important statistic is cost.  The following are costs of various LTC services from the 2021 Cost of Care Survey provided by Genworth Financial, Inc. 

Nursing home costs are significantly higher than in-home services.  People may think of LTC costs in terms of nursing homes, but as discussed in the previous paragraph, the majority of LTC services are the less expensive, in-home type. So, while all LTC costs are significant, they might not be as high as commonly thought.

Let’s use this data to come up with some possible numbers for an Ohio farmer.  Assume the following:

  • A 65year-old farmer has a 67% chance of needing LTC
  • The length of that care will be around 3 years
  • 1 year of care will be unpaid inhome services
  • 1 year of care will be paid, inhome services at around $60,000/year
  • 1 year of care will be in a nursing home at around $90,000/year

Based on the above assumptions, a 65-year-old Ohioan, on average, can expect about $100,000 in LTC care costs ($60,000 + $90,000 x 67%). Keep in mind that these costs are per person and a married couple will have double these potential costs. The next question is, can the average farmer absorb LTC costs without jeopardizing the farm?  That's a question we'll examine in a future post in the Legal Groundwork Series.

 

Tractor preparing fields for planting season, with Farm Office Live information overlay.
By: Jeffrey K. Lewis, Esq., Tuesday, April 19th, 2022

April showers brings . . . Farm Office Live! That's right, this month's Farm Office Live returns this week! Catch up on all the recent legal, tax, and farm management information that affects your farm office! 

The Farm Office Team of Dianne Shoemaker, David Marrison, Peggy Kirk Hall, Barry Ward, Robert Moore, and Jeff Lewis will provide an update and disscussion on: 

  • State and Federal Legislation 
  • LLC Liability Protection 
  • 2021 Midwest Farm Performance
  • Fertilizer and Crop Budgets
  • FSA Programs
  • The Ohio General Assembly's Website 

Catch Farm Office Live this Friday, April 22 from 10:00 - 11:30 AM.  Unable to make it? Not registered? Don't worry because you can register for, or watch a replay of, this month's Farm Office Live at go.osu.edu/farmofficelive. We look forward to seeing you there! 

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Farmer holding clipboard with tractor in background and Legal Groundwork Series title

By Robert Moore, Attorney and Research Specialist, OSU Agricultural & Resource Law Program

Most farmers do a great job of managing their taxable income.  They buy inputs or machinery to offset the current year’s income and wait until next year to sell the current crop.  This strategy works well but it catches up to the retiring farmer.  In the year of retirement, a farmer may find themselves with an entire year (or more) of crops or livestock to sell and no expenses to offset the income.  Additionally, machinery and equipment that will no longer be needed for production will need to be sold.  Selling all these assets upon retirement without offsetting expenses can result in tremendous tax liability.

One strategy for retiring farmers to consider is using a Charitable Remainder Trust (CRT).  The CRT is a special kind of trust that can sell assets without triggering tax liability while providing annual income for the retiring farmer.  The CRT essentially spreads out the income from the sale of the assets over many years to keep the farmer in a lower tax rate bracket.  Also, the CRT allows the retiring farmer to make a charitable donation to their charity of choice.

The primary component of a CRT strategy is that a CRT does not pay tax upon the sale of assets.  Due to its charitable nature, a CRT can sell assets and pay no capital gains tax nor depreciation recapture tax.  The retiring farmer establishes a CRT then transfers the assets they want to sell into the CRT.  The CRT then sells the assets.  For the strategy to work, the trust must be a CRT.  A non-charitable trust will owe taxes upon the sale of the assets.

The proceeds from the sale of the assets are then invested in a financial account.  The farmer works with an investment advisor to determine the desired annual income needed from the proceeds and then an appropriate investment portfolio is created.  It is important to note that income calculations must include leaving at least 10% of the principal to a charity.  The farmer may not receive all the income or the trust will not qualify as a charitable trust.  The term of the payments from the investment portfolio cannot exceed 20 years.

After the financial account is established, the farmer will receive annual income.  This income is taxed at the farmer’s individual tax rate.  By paying the sale proceeds out over a number of years, the farmer’s income tax bracket can be moderated.  Selling all assets in one year would likely cause the farmer to be pushed into the highest income tax and capital gains tax bracket, so spreading out the income keeps the farmer in a lower tax bracket.

Another important component of a CRT is the charitable giving requirement.  As stated above, the farmer must plan to give 10% of the principal to a charity.  The funds are provided to the charity when the term of the investment expires or when the farmer dies.  Depending on the performance of the investment, the charity may receive more than 10% or less than 10%.  The farmer must be able to show that when the investment account was established, the intention was for the charity to receive at least 10% of the original principal.

Consider the following examples, one with a CRT and one without.

Scenario without CRT.  Farmer decided to retire after the 2021 crop year.  Farmer owned $800,000 of machinery and $200,000 of grain.  Farmer sold all the grain and machinery before the end of 2021.  Farmer owed tax on $100,000 of ordinary income due to depreciation recapture on the machinery and sale proceeds of the grain.  Farmer’s tax liability was $450,000 for the sale of the assets.

Scenario with CRT.  Farmer established a CRT and transfered the machinery and grain into the CRT.  The CRT sold the machinery and grain but did not pay tax on the sale proceeds due to its charitable status.  Farmer established an annuity to pay out over 20 years.  Each year Farmer receives $65,000 of income from the CRT.  Farmer pays income tax on the payment but at a much lower rate than the previous scenario.  At the end of the 20-year term, a charity receives $150,000 (original 10% of principal plus interest).

As the scenarios show, A CRT can save significant taxes for the retiring farmer. Also, a CRT allows a retiring farmer to make a charitable contribution to their charity of choice.

A retirement strategy using a CRT is not without its disadvantages.  One disadvantage is the cost to implement the plan.  A CRT plan is complicated and requires the assistance of an attorney, accountant, and financial advisor.  The combined professional fees could be $25,000 or more.  Another disadvantage is the inflexible nature of the plan.  The CRT is an irrevocable trust; once the CRT is implemented the plan cannot be changed.  If the retired farmer finds they need more income than allocated from the CRT, they are unable to make such a change.

Anyone considering retiring from farming should explore the possibility of incorporating a CRT into their plan.  CRTs can save significant income taxes and provide for charitable giving, but it’s not for everyone.  The potential tax savings must be enough to justify the significant costs to establish the CRT and the farmer must be willing to give up control of the sale proceeds.  Retiring farmers should consult with their attorney, accountant and/or financial advisor to assess how a CRT might fit into their retirement plan.

 

Photo of Ohio Statehouse in Columbus, Ohio
By: Peggy Kirk Hall, Friday, April 08th, 2022

UPDATE:  Governor DeWine signed H.B. 95, the Beginning Farmer bill, on April 18, 2022.  The effective date for the new law is July 18, 2022.  The Governor signed the Statutory Lease Termination bill, H.B. 397, on April 21, and its effective date is July 19, 2022.

Bills establishing new legal requirements for landowners who want to terminate a verbal or uncertain farm lease and income tax credits for sales of assets to beginning farmers now await Governor DeWine’s response after passing in the Ohio legislature this week.  Predictions are that the Governor will sign both measures.

Statutory termination requirements for farm leases – H.B. 397

Ohio joins nine other states in the Midwest with its enactment of a statutory requirement for terminating a crop lease that doesn’t address termination.  The legislation sponsored by Rep. Brian Stewart (R-Ashville) and Rep. Darrell Kick (R-Loudonville) aims to address uncertainty in farmland leases, providing protections for tenant operators from late terminations by landowners.  It will change how landowners conduct their farmland leasing arrangements, and will hopefull encourage written farmland leases that clearly address how to terminate the leasing arrangement.

The bill states that in either a written or verbal farmland leasing situation where the agreement between the parties does not provide for a termination date or a method for giving notice of termination, a landlord who wants to terminate the lease must do so in writing by September 1.  The termination would be effective either upon completion of harvest or December 31, whichever is earlier.  Note that the bill applies only to leases that involve planting, growing, and harvesting of crops and does not apply to leases for pasture, timber, buildings, or equipment and does not apply to the tenant in a leasing agreement.  A lease that addresses how and when termination of the leasing arrangement may occur would also be unaffected by the new provisions.

The beginning farmer bill – H.B. 95

A long time in the making, H.B. 95 is the result of a bi-partisan effort by Rep. Susan Manchester (R-Waynesfield) and Rep. Mary Lightbody (D-Westerville).  It authorizes two types of tax credits for “certified beginning farmer” situations. The bill caps the tax credits at $10 million, and sunsets credits at the end of the sixth calendar year after they become effective.

The first tax credit is a nonrefundable income tax credit for an individual or business that sells or rents CAUV qualifying farmland, livestock, facilities, buildings or machinery to a “certified beginning farmer.”  A late amendment in the Senate Ways and Means Committee reduced that credit to 3.99% of the sale price or gross rental income.  The bill requires a sale credit to be claimed in the year of the sale but spreads the credit amount for rental and share-rent arrangements over the first three years of the rental agreement.  It also allows a carry-forward of excess credit up to 7 years.  Note that equipment dealers and businesses that sell agricultural assets for profit are not eligible for the tax credit, and that an individual or business must apply to the Ohio Department of Agriculture for tax credit approval.

The second tax credit is a nonrefundable income tax credit for a “certified beginning farmer” for the cost of attending a financial management program.  The program must be certified by the Ohio Department of Agriculture, who must develop standards for program certification in consultation with Ohio State and Central State.  The farmer may carry the tax credit forward for up to three succeeding tax years.

Who is a certified beginning farmer?  The intent of the bill is to encourage asset transition to beginning farmers, and it establishes eligibility criteria for an individual to become “certified” as a beginning farmer by the Ohio Department of Agriculture.  One point of discussion for the bill was whether the beginning farmer credit would be available for family transfers.  Note that the eligibility requirements address this issue by requiring that there cannot be a business relationship between the beginning farmer and the owner of the asset. 

An individual can become certified as a beginning farmer if he or she:

  • Intends to farm or has been farming for less than ten years in Ohio.
  • Is not a partner, member, shareholder, or trustee with the owner of the agricultural assets the individual will rent or purchase.
  • Has a household net worth under $800,000 in 2021 or as adjusted for inflation in future years.
  • Provides the majority of day-to-day labor and management of the farm.
  • Has adequate knowledge or farming experience in the type of farming involved.
  • Submits projected earnings statements and demonstrates a profit potential.
  • Demonstrates that farming will be a significant source of income.
  • Participates in a financial management program approved by the Department of Agriculture.
  • Meets any other requirements the Ohio Department of Agriculture establishes through rulemaking.

We’ll provide further details about these new laws as they become effective.   Information on the statutory termination bill, H.B. 397, is here and information about the beginning farmer bill, H.B. 95, is here.  Note that provisions affecting other unrelated areas of law were added to both bills in the approval process.

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