Recent Blog Posts
OSU Extension's Ohio Agritourism Conference on April 1 is not an April Fool's Day joke, but it does promise to be fun learning! If you're thinking about adding or expanding agritourism activities on your farm operation, consider joining us as we learn more about what makes a successful agritourism operation. We'll visit two popular agritourism operations in southwest Ohio-- Blooms & Berries Farm Market and The Marmalade Lily -- with touring and talks planned at both locations.
Here's the full agenda for the day:
9 a.m. – Registration at Blooms & Berries.
- Blooms & Berries, an Inside Look. Jeff and Emily Probst - Owners. Meet the team and take a closer look at how we serve about 100,000 guests a year by staying authentically true to our brand and our team!
Morning breakout sessions, featuring Blooms and Berries Farm Market personnel:
- Love Your Staff. Erica Clayton - Retail and Events Personnel Manager. Learn how Blooms & Berries uses culture to create buy-in and develop an amazing guest experience while easing the burnout.
- Ag and Operations Show and Tell. Ben Autry - Ag Production Manager and Derek Rice - Operations Manager. This Q&A session explores the equipment barn, workshop and organizational systems, and specialized equipment.
- The Market Barn - Shopping is an Attraction Too! Emily Probst - Owner. Emily shares top sellers and guest favorites!
- The Pie Dough $. Marie Graves - head baker and Cathy Probst - Owner. Hear how the team makes and sells 5,000 pies from scratch each year, plus cookies and much more.
Noon – Lunch at The Marmalade Lily Event Venue and Floral Farm, with an operation overview from owner Laura Fisher.
Afternoon general session
- Pouring a New Revenue Stream for Your Operation: Adding Alcohol to Agritourism – Peggy Hall, OSU Agricultural & Resource Law Program and Jeff Probst, Blooms & Berries Farm Market
- Pre-sale Ticketing Trends – Shadi Hayek, Ticket Spice
- Minding Your P’s and Q’s – Trademark/Copyright Concerns in Marketing Your Business – Hannah Scott, CFAES Center for Cooperatives
- Employee Hiring, Training, and Empowerment: People Make Your Business – Rob Leeds, OSU Extension Delaware County
- Ask Us Anything – Ask that burning question of our experts and your peers
Registration for the conference is $50 and is now open at: https://go.osu.edu/agritourism.
The need for good farm insurance is well known and obvious to everyone in the farm community. However, understanding how farm insurance works is not as universal. Farmers know they need insurance and that the premiums must be paid but they may not be familiar with some of the key concepts of an insurance policy. One such concept is co-insurance.
A farm insurance policy is a contract between the insured and the insurance carrier. For the policy to be fair to both parties, the insured must provide an accurate inventory of the assets to be covered, including values. The insurance carrier then uses the inventory of assets and values to calculate the premiums it must charge to carry the insurance.
A policyholder may be tempted to suppress the values of the assets in an attempt to keep the premiums lower or, perhaps more likely, may not keep up with the replacement value of property. In either case, whether intentional or not, the insurance carrier is put into an unfair arrangement as it calculates premiums based on undervalued assets. Consider the following example:
Farmer bought a tractor five years ago for $80,000. Farmer believes the tractor has declined in value and includes a $60,000 value on his insurance policy. a similar tractor today would cost $100,000. Farmer’s insurance policy pays replacement value in the event of damage or loss. The tractor is lost in a fire. Farmer expects to be paid the replacement value of $100,000.
In this scenario, Farmer may expect to be paid $100,000 to replace the tractor but he paid premiums based on a $60,000 value. It would be unfair to make the insurance carrier pay $100,000 in replacement costs when it based its premiums on a $60,000 combine.
To avoid the scenario in the above example, farm insurance policies include a co-insurance provision. This concept is an agreement between the insured and the insurance carrier that a minimum amount of insurance must be purchased to replace property in the event of a loss. If the policyholder purchases less than the specified percentage, the insurance carrier is not required to payout the full replacement value – making the policy holder a “co-insurer”. The insurance policy usually requires the insured to purchase insurance on 80% - 100% of the value of property. Co-insurance generally applies to outbuildings, dwellings, and blanket farm personal property. Consider the following example:
Using the same example as above, Farmer’s co-insurance provision requires 80% coverage. The tractor was only valued at 50% of the replacement value so the co-insurance provision in Farmer’s insurance policy is triggered.
The payout calculation for this loss is as follows:
Tractor Replacement Value = $100,000
Co-insurance requirement = 80%
Required amount of insurance = $80,000 ($100,000 x 80%)
Actual amount of insurance purchased = $60,000
Actual insurance/ required insurance = 75% ($60,000/$80,000)
Required payout1 = $75,000 (50% x $100,000)
As this example illustrates, Farmer did not meet his obligation to buy insurance on at least 80% of the value of the tractor. Farmer reported a value of $60,000 or 75% of the value of the tractor. By not meeting the 80% co-insurance requirement, Farmer triggered the co-insurance provision and is therefore partly responsible for the replacement cost. Farmer becomes the co-insured for 25% of the replacement value, the proportion that Farmer undervalued the combine. If Farmer had valued the tractor at $80,000 or higher, the insurance carrier would have been required to payout the full $100,000 for the loss. By inadvertently undervaluing the combine, Farmer forfeited $25,000 of insurance payout.
Co-insurance is an important part of a farm policy insurance that most people have never heard of. The co-insurance provision should be reviewed with the insurance agent along with the value of assets to ensure that full payouts will occur in the event of a loss. It does no good to discover that assets are valued too low after a claim is submitted, any adjustments in value to comply with the co-insurance requirement must be done before there is a loss.
1 Any deductible would also be deducted from the payout.
It's almost as fun as basketball! Join the OSU Extension Farm Office team for the March Madness Edition of Farm Office Live on Friday, March 17 from 10:00 to 11:30 a.m. This monthly webinar delivers the latest on current farm management and agricultural law issues for Ohio farmers and agribusiness professionals.
Here's what we'll be covering:
- Legislative Update (Peggy Hall)
- New Postnuptial Agreement Legislation (Robert Moore)
- Selling Timber--Call Before You Cut (Dave Apsley)
- Update on Crop Input Costs and Crop Budget Outlook for 2023 (Barry Ward)
- Sales Tax Exemption Issues (Jeff Lewis)
- Spring Crop Insurance Update (Eric Richer)
- Emergency Relief Program (David Marrison)
There is no fee to attend Farm Office Live, but attendees need to register at go.osu.edu/farmofficelive. We hope to see you there!
Tags: Farm Office Live
Cell tower leases can be a great source of income for landowners. The towers have a relatively small footprint on the land and can provide monthly income of $1,000 or more. Additionally, and in some cases most importantly, having a cell tower can increase cell service quality and dependability.
Many landowners are eventually contacted by the cell tower company or another third-party company to purchase the lease rights. The purchasing company offers a large, one-time payment to buy out the lease rather than continuing to receive monthly payments. This buyout presents the landowner with an opportunity to generate a large, one-time payment rather than waiting on the monthly payments. The issue for the landowner is whether the one-time payment is large enough to give up the future stream of payments.
When deciding if the one-time payment is enough to relinquish the monthly payments, the first course of action is to determine the Present Value of the lease. Present Value calculates the current value of a future stream of income. There are calculators available online to easily calculate the Present Value. The offered payment should be something close to the Present Value.
Another factor to consider when analyzing the payment structure is the number of carriers on the tower. Some cell tower leases pay additional rent when carriers are added to the tower. Thus, the value of the lease many not be limited to just the Future Value of the current income stream but also the potential for increased revenue due to additional carriers added to the cell tower. For leases with the opportunity to increase revenue with the addition of new carriers, this additional value should be factored into the one-time payment analysis.
Like most business transactions, taxes are an important factor in analyzing the favorability of the deal. Cell lease buyouts are no different. The buyout payment will likely be considered a capital gain. Therefore, the gain will likely be taxed as capital gains rate rather than ordinary income. Capital gains tax rates tend to be lower than ordinary income tax rates.
Taking the one-time payment has advantages. The first, and most obvious advantage, is it creates a much larger and immediate payment than the monthly payments. Additionally, the buy-out payment can usually be used in a like-kind exchange. That is, if the sale proceeds are invested into other business real estate, the capital gains tax is deferred. Lastly, the one-time payment is a guaranteed payment for a certain amount. There is not the same certainty with the lease payments. Cell leases typically allow the cell company to terminate the lease at any time.
The obvious disadvantage of taking the one-time payment is the loss of the monthly payments. The payments are a nice supplemental income and are a dependable source of income. Additionally, taking the one-time payment could cause the landowner to be pushed into the higher, 20% capital gains tax rate.
For those landowners who have cell leases and receive an offer to buy out the lease, seeking tax and legal advice is a good idea. An accountant and/or attorney can provide valuable guidance and insight into analyzing the advantages and disadvantages of having the lease bought out. Working with an attorney who has experience with cell tower leases can have significant benefits. The attorney can help advise as to how much the buyout payment should be, help negotiate better terms and, also help reinvest those funds into other real estate to defer capital gains.
Did you know Buckeyes can make and sell homemade Buckeyes? That’s because those peanut butter and chocolate candies we call Buckeyes are a “cottage food” in Ohio. And our Cottage Food Law allows home-producers to make cottage foods with little agency oversight and without obtaining a food license. There are several laws that do apply to making Buckeyes and other cottage foods, though. We explain them in our newly updated law bulletin on Ohio’s Cottage Food Law.
Why do we have a Cottage Food Law?
Food science teaches us that some foods pose a lower food safety risk than other foods. Likewise, some foods have a higher chance of causing a foodborne illness if not handled properly. Our Cottage Food Law recognizes this difference and allows home-producers to make and sell those food products that have a low food safety risk and don’t require special handling. At the same time, the Cottage Food Law prohibits home-producers from making higher risk “potentially hazardous” foods.
Which foods are cottage foods?
The Ohio Department of Agriculture (ODA) has the responsibility of determining which foods are cottage foods. If a food is on the cottage food list, the Cottage Food Law applies. The full list is in our Ohio Cottage Food Law Bulletin and in Ohio Administrative Code Section 901:3-20-04. It includes items like baked goods, candies, jams and jellies, granola, and many dry mixes, herbs and mixes. But note that there are exceptions in many of the categories. For example, freezer jam and sugar free jam are exceptions in the jam category, and those types of jams are not cottage foods. For this reason, it’s important to identify whether a specific food product is on the cottage foods list. ODA also maintains a helpful list of foods that are not cottage foods, and we explain those in the bulletin. Many producers will be disappointed to know that salsa is on that list.
What laws apply to cottage foods?
Even though a home-producer need not obtain a food license to make and sell a cottage food, there are four laws that do apply to a cottage food product. These laws address:
- Labeling requirements
- Packaging restrictions
- Sales restrictions
- ODA product sampling authority
Read about these legal provisions and more in our Ohio Cottage Foods Law bulletin, available in the Food Law Library on farmoffice.osu.edu. Also check out our recent webinar that addresses product development and laws for cottage foods and other home-produced foods in the Starting a Food Business webinar series.
Tags: cottage foods, food law, food licenses, Ohio Cottage Food Law
On March 23, 2023, Ohio Senate Bill 210 will become law. Prior to this new legislation, Ohio was one of only two states (Iowa) that did not allow for postnuptial agreements. This new law will allow married couples to modify or terminate their existing prenuptial agreement or enter into a new postnuptial agreement. This needed change to Ohio law will allow married couples to adapt to changes with their assets, families and goals.
Ohio prenuptial agreements have long been available to Ohio married couples. A prenuptial agreement, in basic terms, identifies what assets are to be considered marital assets and which assets are non-marital assets. In the event of divorce or death, the other spouse is not entitled to the non-marital assets. Prenuptial agreements are entered into prior to marriage.
Prenuptial agreements can become outdated, especially when marriages last many years. A married couple who enters into a prenuptial agreement when they are 25 may have very different assets and goals when they are 65. Until now, married couples were stuck with their prenuptial agreement regardless of how unfair or obsolete the agreement had become.
A postnuptial agreement is similar to a prenuptial agreement in that it identifies which assets are to remain outside of the marriage and what assets are considered joint, marital assets. A postnuptial agreement is signed sometime after marriage begins. There are no term requirements for a postnuptial agreement – it can be entered into shortly after marriage or many years after marriage.
For a prenuptial agreement to be terminated or amended or for a postnuptial agreement to valid, the new law requires the following:
- The agreement be in writing and signed by both spouses,
- The agreement is entered into freely without fraud, duress, coercion or overreaching,
- There was full disclosure, or full knowledge, and understanding of the nature, value and extent of the property of both spouses,
- The terms do not promote or encourage divorce or profiteering from divorce.
Special notice should be given to the third requirement. It is important for each spouse to fully declare the assets that they own and the value of those assets. Failure to inform the other spouse of their assets and the extent of those assets is another way to invalidate a prenuptial or postnuptial agreement. If one spouse is unaware of the extent of the other spouse’s assets and/or wealth, they may unknowingly enter into a prenuptial or postnuptial agreement that is unfair. It is best to include an inventory of both spouses’ assets with values in the prenuptial or postnuptial agreement and clearly identify which assets are to be considered marital assets and which are to be non-martial assets.
This new legislation has ramifications for farm planning. Before now, if a prenuptial was not already in place, there were risks to bringing in family members to the farming operation. After someone comes into the farming operation, their ownership in the farming operation may become a marital asset subject to a divorce. This concern sometimes causes parents or grandparents to be hesitant to bring a child/grandchild into the farming operation.
Now, the parents/grandparents can require a postnuptial agreement before admitting a family member into the farming operation. While this requirement can cause friction with family relationships and may be an awkward issue to raise, it is something to consider.
Consider the following example:
Father would like to bring Daughter into Farming LLC. Daughter is recently married but does not have a prenuptial agreement. Father is considering gifting a 25% ownership interest in Farming LLC to Daughter valued at $500,000. Father is concerned that if Daughter’s marriage fails, he may have to buy back some of the 25% ownership from Daughter’s ex-husband.
The first thing to consider in the example is the nature of gifted assets. Under Ohio law, gifted assets are not marital assets. However, appreciation in the value of the gifted asset can become a marital asset. So, Father’s concern is justified. On the day that Daughter receives the 25% ownership gift, her husband has no marital rights in the ownership. However, after the ownership has appreciated in value, particularly if the appreciation can be attributed to Daughter’s labor or management, Daughter’s husband may have marital rights in some of the ownership.
With the new legislation, Father can require Daughter to enter into a postnuptial agreement making her ownership in Farming LLC, including future appreciation, a non-marital asset. If Daughter and her husband divorce, Daughter’s ownership in the LLC will be protected. Father is now more likely to bring Daughter into the farming operation due to the postnuptial agreement.
Like many farm transition legal issues, family dynamics are involved. It may be difficult for Father to ask Daughter to enter into a postnuptial agreement or the request may upset Daughter. Perhaps Daughter’s husband refuses to enter into a postnuptial agreement. While a postnuptial agreement can help protect the financial viability of a farming operation, the toll it may take on family relationships must also be considered.
Senate Bill 210 is a positive change to Ohio law. While postnuptial agreements are not a solution in all situations, it is another tool in the farm transition toolbox. Like most legal agreements, an attorney should be consulted before entering into a postnuptial agreement and each spouse should have their own, independent legal counsel.
Tags: postnuptial agreement
In the event of a property loss or a liability incident, the insured and the insurance carrier cooperate to determine the type of coverage and the extent of coverage required by the insurance policy. As a practical matter, an insured is well-advised to thoroughly document the loss event. This may include written notes, pictures and/or retained documents.
The insured should notify law enforcement if any laws were broken in causing the loss event. This notification should be promptly followed by notice to the insurance company and include a general description of the events and the property that is damaged. This notice does not usually need to be in great detail, but a simple explanation of how the damage occurred, when the damage occurred, and what property was damaged. Additionally, it is important for the insured to take reasonable steps to protect the property from further diminishing in value. Essentially, the insured should not allow the property to be completely destroyed if the insured party can salvage any of the value.
After notification is provided, the duties and responsibilities of the insured are not over. For a property loss, the insured party should complete an accounting of the damaged property. The accounting may include quantities, costs, values, and the specific amount of loss claimed. An accounting serves multiple purposes. First, it causes the insured to identify all property subject to loss and the extent of the loss in an organized manner. An accounting also provides a summary to the insurance carrier so that the carrier may begin the claim process more expeditiously. The insurance provider will likely conduct an investigation into the claimed loss and an accounting will assist the carrier in its investigation. Last, in the event the insured disputes the insurance carrier’s determination related to the loss, the accounting will make the process of challenging the insurance carrier’s payout easier.
Obviously, insurance is obtained for the financial protection it provides to the insured in the event of a loss event. Thus, the amount one receives from their insurance carrier is likely one of the main considerations when reviewing or shopping for a new policy. Essentially, insurance payouts are calculated based on two different mechanisms, the replacement value or the actual cash value. These two payout methods create the basis for the amount of money an insured party will receive for their loss.
Replacement value, as the name suggests, means that an insured party will be paid the amount it will cost to replace the lost items and/or structures. Essentially, a policy utilizing replacement value will pay the smaller amount of restoring the items to their condition at the time of damage or the cost of replacing them with items of the same condition. This method can provide a more stable and higher amount of payout in certain circumstances.
The other means of determining an insurance payout is by using actual cash value. Generally, because most items depreciate over time, the amount paid under this method is commonly lower than the replacement value method. Under the actual cash value method, the insured will be paid the value of the item’s depreciated value rather than the amount it will cost to replace.
The difference between these two payout methods is an important consideration when analyaing insurance policies, especially with the recent rise of inflation. Consider the following example:
A new tractor was purchased in 2020 for $300,000. The tractor is now worth $200,000 due to depreciation caused by wear and tear. The same model tractor is selling new today for $350,000. In this situation, someone who has a replacement value insurance policy would receive the $350,000 necessary to repurchase the same/similar model. On the other hand, someone covered under the actual cash value method would only receive the $200,000 amount.
The above example is a simple explanation of the difference between replacement value and actual cash value payouts. Many smaller calculations can make the difference more nuanced. Be sure to work with your insurance agent to determine the payout for specific losses.
An insurance policy will typically include a limit on the payout. The insurance carrier includes the limit to protect itself from unusually large claims or unforeseen claims. For example, using the above scenario, the insurance carrier may have included a limit of $300,000 for the payout. In that event, the owner would have only received $300,000 for the payout rather than the $350,000 for the replacement value payout. Limits to payouts are an important term in insurance policies, be sure review the limits carefully to ensure adequate coverage for farm assets.
Appealing Coverage Determinations
After submitting a claim, the insurance carrier will typically send a letter stating the extent of the coverage or a denial of coverage. The letter will also include instructions on how to appeal the determination. If the insured does not believe the coverage or denial determination is correct, they can appeal the determination. The notice of appeal is sent to the insurance carrier and will initiate the appeal process. Be sure to meet all deadlines and follow the instructions for appealing carefully. A missed deadline or a misstep in filing the appeal can extinguish appeal rights. The matter must typically be appealed to the insurance carrier before taking the matter to arbitration or litigation.
If the insurance carrier denies the appeal, then litigation and/or arbitration may be the next step in obtaining the claim. At this point, hiring an attorney is often warranted. An attorney experienced in working with matters related to insurance and insurance carriers can provide valuable insight and counsel in an insurance claim appeal. Some policies may require arbitration to resolve a dispute. Arbitration is a private dispute resolution process where a person or persons hear arguments from both parties then issue a decision. Arbitration can be more expeditious and less costly than litigation. Matters taken to litigation are decided by a court. Litigation may take longer and be more expensive than arbitration but also may provide more appeal rights.
In addition to appeals to the insurance carrier, complaints about the conduct of insurance carriers can be submitted to the Ohio Department of Insurance. The complaint should explain the matter in some detail. Including photos or other supporting evidence with the complaint is often a good idea. The agency will review the complaint and, if warranted, conduct an investigation into the matters provided by the complaint. The agency may reach out to the carrier to encourage a resolution of the matter identified in the complaint. All insurance carriers conducting business in Ohio are subject to the rules and regulations of the Ohio Department of Insurance.
Yes, you read it right: our roundup of agricultural law questions includes a question on popcorn--not one we often hear. Below is our answer to it and several other legal questions we’ve recently received in the Farm Office.
A farm lease landlord didn’t notify a tenant of the intent to terminate a verbal farm lease before the new September 1 deadline. What are the consequences if the landlord now tries to enter into a new lease agreement with another tenant operator?
Ohio’s new “statutory termination law” requires a landlord to provide written notice of termination of a verbal farmland lease by September 1 of the year the lease is effective. The law is designed to prevent a tenant from losing land late in the leasing cycle, after the tenant has made commitments and investment in the land. The new law now establishes September 1 as the deadline for a valid termination, unless a lease provides otherwise. If a landowner terminates after September 1, the consequences are that a tenant could either try to force continuation of the lease for another lease period or seek damages for the late termination. Those damages could include reimbursement for work already completed, such as fall tillage, nutrient applications, and cover crops; reimbursement for input costs such as seed and fertilizer that tenant cannot use or return; and lost profits from the tenant's loss of the crop. Find our law bulletin on the new statutory termination date for farm leases on the Farm Office website.
A farmer plans to build a barn and grain bins close to the property line of a neighbor. Does the neighbor have a legal right to stop the farmer from building so close to the boundary?
No, probably not. Because the neighbor lives in a rural area, Ohio’s “agricultural exemption” from local zoning regulations applies to the situation. The agricultural exemption law states that except in limited circumstances, agricultural land uses and structures used for agriculture, like barns, are not subject to township or county zoning regulations and building permit requirements. If this township has building setback requirements in its zoning resolution, for instance, the farmer is not subject to the regulations and can build the barn closer to the property line than the setback provisions require and farmer is not required to obtain a zoning or building permit for the barn. One exception is that if the farmer’s land is less than five acres and is one of at least 15 lots that are next to or across from one another, the agricultural exemption would not apply to the farmer's land. Find the agricultural exemption from zoning in Ohio Revised Code 519.21.
In replacing a line fence, a landowner entered a neighbor’s property and cleared 10 feet from the fence of all brush and trees, even though the neighbor warned the landowner not to do so. Did the landowner have a right to cut and remove the neighbor’s trees and vegetation?
No. Ohio law in Ohio Revised Code 971.08 does allow a person to enter up to 10 feet of an adjacent neighbor’s property for the purpose of building or maintaining a line fence, but it is only a right of entry for the purpose of working on the fence. It allows a person to access the neighbor's property without fear of legal action for trespass. But the law does not allow a person to remove trees or vegetation within the 15 foot area. In fact, the law specifically states that a person will be liable for any damages caused by the entry onto the neighbor’s property, including damages to crops. Additionally, since the neighbor stated that the trees should not be removed and the landowner removed them anyway, the landowner could be subject to another Ohio law for “reckless destruction” of trees and vegetation. That law could make the landowner liable for three times the value of the trees that were removed against the neighbor’s wishes. Find the reckless destruction of vegetation law in Ohio Revised Code 901.51.
Would a milk contamination provision in an insurance policy address milk that could be contaminated as a result of the East Palestine train derailment?
Probably not. Milk contamination coverage provisions in a dairy's insurance policies typically only apply to two situations: unintentional milk contamination by the dairy operator and intentional contamination by a party other than the dairy operator. Contamination resulting from an unintentional pollution incident by a party other than the dairy operator would not fit into either of these situations. But insurance policies vary, so confirming a farm’s actual policy provisions is important when determining insurance coverage.
A grower of popcorn wants to process, bag, and ship popcorn. Does the grower need any type of food license?
No. Popcorn falls under Ohio’s “cottage food law.” Popcorn is on the list of “cottage foods” identified by the Ohio Department of Agriculture (ODA) as having lower food safety risk than "potentially hazardous foods." A producer can process and sell a cottage food without obtaining a food license from the ODA or the local health department. However, the producer may only sell the food within Ohio and must properly label the food. Labeling requirements include:
- Name of the food product
- Name and address of the business of the cottage food production operation
- Ingredients of the food product, in descending order of predominance by weight
- Net weight and volume of the food product
- The following statement in ten-point type: "This product is home produced."
Read our law bulletin on Ohio’s Cottage Food Law on the Farm Office website.
Tags: farm lease, statutory termination, line fences, trees, Zoning, agricultural exemption, dairy, Insurance, popcorn, cottage foods
It’s the time of year when farmers are cleaning up fence rows and boundary lines to prepare fields for planting season. Tree law questions pop up a lot during this time. Here are answers to the most commonly asked questions we receive about trees along boundary lines in Ohio’s rural areas. Note that there can be different laws addressing trees within a city or village.
Who owns a tree that’s on the property line?
When a tree is on the boundary line between two properties, both neighbors have ownership interests in the tree. However, if only the branches or roots of a tree extend past the property line and into a neighbor’s property, the branches and roots do not give that neighbor an ownership interest in the tree.
Can I cut down a tree on the boundary line?
No, not if your neighbor doesn’t agree to the removal. Because both you and your neighbor jointly own the tree, you must both agree to cutting down the tree. If you remove the tree without the neighbor’s approval, you could be liable to the neighbor or the neighbor’s share of the value of the tree, or for three times the value of the tree if you behaved “recklessly,” explained further on.
Can I trim the branches of the neighbor’s tree that hang over my property?
Yes, even if the tree isn’t on the boundary line and you don’t have an ownership interest in it, you still have the legal right to trim branches that hang over your property. However, you must take “reasonable care” in trimming the branches. Failing to act with reasonable care and causing harm such as disease or death of the tree could result in liability.
How does the law determine liability for harming or cutting down a tree?
Ohio Revised Code 901.51 addresses injury to vines, bushes, trees, or crops on land of another, referred to as the “reckless destruction of vegetation law." The law states that a person shall not “recklessly cut down, destroy, girdle, or otherwise injure a vine, bush, shrub, sapling, tree, or crop standing or growing on the land of another or upon public land.” The word “recklessly” means the action occurred with complete disregard to the rights of the landowner. Violations of the reckless destruction law can result in criminal misdemeanor charges or a civil negligence lawsuit by the tree owner. The law provides potential punitive “treble damages” that make the violator liable for three times the value of the damaged tree, crop, or vegetation.
If my neighbor’s tree falls onto my property, is the neighbor liable for the damage?
Possibly, if the neighbor had knowledge that the tree was diseased, weak, or “patently dangerous.” If the tree was not in a weakened or damaged condition or the neighbor had no knowledge of its condition, the law would not likely create liability for the damage. You'd have to take action against the neighbor to establish liability, however. If there is harm to a structure, your insurance provider might be involved and take the lead on establishing responsibility under the neighbor's insurance coverage. Even so, there is no law that creates an affirmative duty for the neighbor to clean up the tree. Landowners are expected to use the remedy of “self-help,” i.e., to clean up natural and ordinary tree debris on their property, even if from a neighbor’s tree. Likewise, the neighbor is expected to clean up debris from your trees that fall onto the neighbor’s property.
Can I keep the timber or firewood from the neighbor’s tree or a boundary tree that fell on my property?
Ohio law doesn’t address this issue. The “self-help” remedy for tree debris that falls on the property suggests that you are responsible for removing the debris, which could logically allow you to do as you wish with the debris. But if the tree is valuable or was a jointly owned boundary tree—might the neighbor have rights to the tree or its value? Because Ohio law doesn’t clearly answer this question, it’s wise to talk with the neighbor and provide a reasonable amount of time for the neighbor to claim ownership and remove their share of the tree. Document the notice given to the neighbor as well as the timber or firewood resulting from the tree in case the neighbor fails to respond until after tree removal and claims an ownership interest at that time.
Tags: boundary law, property law, tree law, overhanging branches, neighbor law
After many years in private law practice, OSU’s Robert Moore knows the unique estate planning challenges farm families face. The capital-intensive nature of farming and the family legacy associated with it are just two of the many issues that contribute to those challenges. But Moore also knows there are legal strategies that can help farm families meet their estate planning needs.
Join Moore as he reviews both the challenges of farm family estate planning and ways to address those challenges in a webinar this Wednesday at Noon. The webinar offers a chance to learn more about topics such as dealing with on-farm and off-farm heirs, distribution plan ideas, and how trusts can benefit a farm estate plan. The National Agricultural Law Center will host the webinar as part of its free monthly webinar series. Registration is necessary and is available online at https://nationalaglawcenter.org/webinars/estate-planning/.
The webinar represents an ongoing partnership between OSU’s Agricultural & Resource Law Program and the National Agricultural Law Center. For eight years, the two institutions have worked together to bring agricultural law research and information to the nation’s agricultural community with support from the USDA’s National Agricultural Library. Our agricultural law library on farmoffice.osu.edu contains many resources developed through this partnership, including recent publications on Planning for the Future of Your Farm, Keeping Farmland in the Family, and Long-Term Care and the Farm. Those and a multitude of other agricultural law resources are also available on the National Agricultural Law Center’s website at nationalaglawcenter.org.
If you’re not available to attend the webinar this Wednesday, find a recording of it and all other webinars in the monthly series at https://nationalaglawcenter.org/webinars.
Tags: Estate Planning, transition planning, planning for the future of your farm