Friday, February 11, 2022
Buying farmland is a major decision. That means that it’s important to carefully consider numerous things before signing the purchase contract. Many persons have bought farmland only to encounter unanticipated problems.
So, what can be done to avoid the unexpected? A lot of it boils down to making sure that the buyer has full information about the property they are interested in buying. This is especially important with respect to farmland.
Considerations when buying farmland – it’s the topic of today’s post.
Environmental Issues – Due Diligence
Endangered Species. Rural landowners can have issues with various state and federal regulatory agencies such as the Natural Resources Conservation Service (NRCS); the Environmental Protection Agency (EPA); the U.S. Army Corps of Engineers (COE); the Interior Department; and the Fish and Wildlife Service (USFWS). The extent to which any of those government agencies has regulatory authority over the land in question is tied to where the land is located. Some parts of the country are more susceptible to government regulations. States such as Florida, California and Tennessee, for example, are a few of the states with a substantial agricultural economy that have many endangered or threatened species and animals and plants. A “habitat” designation for protected species on privately owned land can severely restrict farming and ranching activities on that land. Some pre-purchase research as to listed species in the state where you are considering and then determining whether a habitat designation might influence the land is worthwhile.
Comprehensive Environmental Response Compensation & Liability Act (CERCLA). CERCLA focuses on the cleanup of hazardous waste sites, but it can have significant ramifications for agricultural operations because the term “hazardous waste” has been defined to include most pesticides, fertilizers, and other chemicals commonly used on farms and ranches and its presence can lead to huge liability.
Perhaps the most important defense to CERCLA liability is the “innocent purchaser” defense. This defense applies if the defendant purchased land not known at the time of purchase to contain hazardous substances, but which is later determined to have some environmental contamination at the time of the purchase or is contiguous to land not known at the time of the purchase to be contaminated. A buyer attempting to utilize this defense must establish that the real estate was purchased after the disposal or placement of the hazardous substance, and that the buyer didn’t know or had no reason to know at the time of purchase that a hazardous substance existed on the property. To utilize the defense, the buyer, as of the purchase date, must have undertaken “all appropriate inquiry” into the previous ownership and uses of the property in an effort to minimize liability. The phrase “all appropriate inquiry” generally depends upon the existence or nonexistence of five factors: (1) the buyer’s knowledge or experience about the property; (2) the relationship of the purchase price to the value of the property if it was uncontaminated; (3) commonly known or reasonably ascertainable information about the property; (4) the obviousness of the presence or likely presence of contamination of the property; and (5) the ability to detect such contamination by appropriate inspection.
A buyer of farmland can take several common-sense steps to help satisfy the “appropriate inquiry obligation”. Certainly, a title search should be made of the property. Any indication of previous owners that may have conducted operations that might lead to contamination should be investigated. Aerial photographs of the property should be viewed, and historical records examined. Likewise, investigation should be made of any government regulatory files concerning the property. A visual observation of the premises should be made, soil and well tests conducted, and neighbors questioned. However, the execution of an environmental audit may be the best method to satisfy the “all appropriate inquiry” requirement. Some states have enacted legislation requiring the completion of an environmental audit upon the sale of agricultural real estate. Today, many real estate brokers, banks and other lenders utilize environmental audits to protect against cleanup liability and lawsuits filed under CERCLA.
Drainage records. In some parts of the country farmland is tile drained. This is particularly the case in areas of the corn belt east of Nebraska. Public records are a good place to look for information about a tract of farmland. Checking drainage records with the local Auditor’s office (at least in some states) is a good place to discover drainage information. Those records may not be in the Recorder’s records and probably won’t show up in an abstract. Also, there may be private drainage agreements and/or easements that exist. Those agreements will likely be recorded and appear in the Recorder’s office records for the property.
USDA records. USDA records about the land should be examined. This includes Farm Service Agency (FSA) and NRCS records. Many sellers will choose to make all of the records open concerning a particular farm. So, that can be a good way to get your hands on USDA maps and documents. This will also allow the buyer to determine if there are any government contracts or easements on the property, such as the Conservation Reserve Program or the Wetlands Reserve Program. Also, the USDA information will allow the buyer to determine if any of the land is highly erodible or has wetland status.
Wetlands. A wetland designation on even a small part of the farmland can create significant problems for the owner. There are two possible aspects to such a designation. One aspect is regulation via the USDA’s Swampbuster rules. Under those rules, land designated as a wetland cannot be farmed. Doing so can bring substantial penalties. This makes it imperative to analyze any available aerial photos, soil maps and the type of vegetation that is growing on various areas of the land.
The other aspect with respect to wetland is the “waters of the United States” (WOTUS) issue under the jurisdiction of the EPA and the COE. Under the current regulatory interpretation of the extent of federal jurisdiction, virtually any connection with a WOTUS can bring substantial restrictions on what can be done on the designated location(s) and result in substantial penalties. In addition, a wetland designation with Swampbuster and/or WOTUS implications can have a substantial negative effect on the land’s value.
Note: Any time that a governmental agency gets involved, the administrative process can drag on for months and even years. It can be a horrible and costly process. Due diligence before the purchase can help steer you away from a tract that might get you caught up in a bureaucratic web.
Existing lease. It’s important to determine whether the land being purchased is leased to a tenant. In some states, long-term farm leases must be recorded. In that situation, check the publicly filed records. But most farm leases are oral leases that run from year-to-year. Relatedly, for farmland purchases from an individual (or entity) seller or an estate, it is important to understand whether the lease will continue (and, if so, for how long) or whether it has been properly terminated in accordance with state law. The mere sale of the land, absent some written agreement, will not terminate any existing lease.
Note: Do not take a realtor’s (or auctioneer’s) word for it that an existing lease has been terminated or that the purchase will terminate the lease.
If the land is leased, determine who the tenant is. Is there only one tenant or multiple tenants? Ask the existing owner/seller to check the FSA records to see how the government program payments (if any) are being paid and who signed up for them as “tenant.” If multiple tenants are involved, have they all been properly terminated in accordance with state law?
Local Development Plans
The erection of either wind turbines or solar panels on adjacent or nearby property will have an impact on land value of the tract you buy. If there currently is no such development, are plans in the works? Check archives of local newspapers for information on county commissioner meetings as well as with the county clerk. What’s the talk in the community? Have easements been acquired on adjacent tracts, but development not begun. Get the seller to sign-off on a disclosure statement about what they know concerning potential development in the area, and whether the seller has been approached by wind or solar developers.
Note: The seller’s failure to disclose key information when required by law as well as an untruthful disclosure that the buyer can prove, can serve as the basis for cancelling a farm sale before closing occurs if the failure pertains to information that serves as the basis of the bargain.
Also check county records for long-range planning documents. Are plans in place to widen a road that borders the property that would take some of the land out of production? If so, how would that impact your plans for the property?
Signatures. Make sure to obtain all appropriate signatures (that means a spouse, when applicable), and determine whether the sale is part of a family settlement agreement. Also, it is important to make sure that the legal description matches what is being purchased. On this point, take great care when using the abstract and bring it up to date before the purchase and have it carefully examined for accuracy and for defects in title.
Sometimes a tract of land won’t have precisely the acres that the buyer thinks it has. A half-section, for example, may not actually contain a full 320 acres. That’s especially likely if the tract lies on the edge of a township, county or a state border. Similarly, if a “correction” line is present (to account for the curvature of the earth), that can impact the actual number of acres being purchased. In other words, a “section” may not actually be a full section.
From a practical standpoint, put your boots on and physically walk the tract. Look at the fences. Are they on the actual, intended location or boundary? If not, had the adjoining landowners mutually recognized the existing fence location for a long-enough period of time (determined by state law) so that it is the actual dividing line irrespective of what a survey shows? Is there a written fence agreement that has been recorded? Probably not, but it’s a good idea to check the real estate records. Look for paths that might be easements. Relatedly, are existing paths wide enough to allow equipment into fields and locations where planting is desired? How much of the land is consumed by ditches and roads? The seller will try to sell in accordance with deeded acres, but a buyer that plans on farming the property is interested in paying only for tillable ground. Not much, if any, value is assigned to non-tillable ground other than pasture.
Land grant universities have good survey data on the value of various classifications of land. That is a good place to start on determining what a fair/average price for the land might be based on its location and soil type/grassland classification. Also, actual local sale data (if it exists) is very helpful in determining market value.
Of course, economic conditions and markets change over time, so current cash flow projections can be off as time passes, so it’s a good idea to build in a buffer to account for negative changes in economic conditions, or unexpected weather issues.
How much of the purchase price can be allocated to depreciable items such as fences, farm structures, drainage tile, feeding floors, residual fertilizer supply, etc.? To the extent that the purchase price can be allocated to such items, it effectively lowers the out-of-pocket cost of the purchase.
There are many things to think about and get clarified when buying farmland. I am sure that I have not covered them all in this brief article. What would you add to the list?