Permitted, Restricted and Prohibited Uses

Definitions

Permitted uses means allowed activities, which can be described generally or in more specific terms in the lease. A lease may broadly permit “normal agricultural activities” or it may have a list that “includes but is not limited to” certain activities. A permitted use may still require permission. For example, a Tenant may be permitted to remove trees, but only certain trees approved in advance by the Landlord.

Restricted uses are those limited or specified by the terms of the lease or by any applicable legality such as statutory, zoning or other regulatory requirements. For example, if the lease is subject to any agricultural conservation or other easement on the property which may limit activities or access.

Prohibited uses are expressly not allowed, although a lease might prohibit an activity unless specific permission is granted. For example, it might say, “the Tenant may not alter the historic façade of the barn unless prior written permission from the Landlord is obtained.”

Purpose

The purpose of this section is to clearly describe what the Tenant is and is not allowed to do on the Premises. The Landowner and Tenant have expectations for how the Premises will be used. Anticipating potential areas of conflict regarding the use of the Premises at the outset, and establishing clear guidelines to address them, will minimize disagreements during the term of the lease. In some instances, it might be helpful to include a provision in this section where the Landlord and Tenant meet periodically to discuss and agree on farm operations plans.

This section addresses farming practices and stewardship, land use, and any management or conservation plans. These terms refer to various formats for describing in detail how the land and other natural and built features of the Premises will be managed. Such plans are typically referred to in the lease and appended. Often, permitted activities are tied to a land management plan or conservation plan prepared by or for the Tenant.

FAQs

A stewardship, land management or farm conservation plan sets forth the parameters for how some or all of the premises will be used. It’s not obligatory, but it’s a valuable tool for both parties. The plan could conform to a particular format such as a Conservation Plan prepared by the USDA Natural Resources Conservation Service, or an Organic System Plan required for organic certification, for example. A stewardship plan might be customized for the parties to the lease, spelling out their shared objectives for treating the natural and built features of the premises. A lease might refer to a plan (as a lease attachment or not), who is responsible for preparing it, and the process by which the parties review and update it.  See the Land Use Stewardship Fact Sheet.

It depends upon which document - the easement or the lease - was in place first. If the easement predates the lease, the lease would have to abide by the terms of the easement. If there is an easement on the premises, it should be attached to the lease and referred to if there is any doubt about a particular activity or use. If an easement is going to be placed on property after a lease is in place, the lease has standing, and the easement must reflect the existence of the lease. However, changes to the lease could be negotiated to be consistent with an easement. In any case, the terms of the lease and the terms of the easement should not conflict.

The best way to avoid uncertainty about permitted or prohibited uses is to be as clear and comprehensive as possible in the lease language. That said, it’s impossible to list or anticipate every kind of use. When in doubt, check with the other party, either according to the directions in the lease for doing so, or by simply asking. The adage that it’s “better to ask forgiveness than permission” is not a best practice when it comes to harmonious farm leases.

The answers to these questions are not straightforward. Agriculture is defined differently in various Federal, state, and local laws and regulations. Perceptions of farming differ as well. For example, is agri-tourism farming? Is turning apples into apple pie on the farm an agricultural activity? Commercial composting? Horse boarding? Aquaculture? Ultimately, it’s up to the landowner and farmer to come to a mutually agreeable definition for them (provided that whatever they agree on does not contradict any laws).

Agriculture evolves, and farmers innovate to be viable. Farming practices considered customary by some may be questioned by others. Some leases simply permit “generally accepted agricultural practices,” while others are more specific. The parties may insert a definition of farming from a local or state regulation, or may use this section to expand or limit this definition through the permitted, restricted, and prohibited uses.

Example Text

These text examples (in italics) illustrate what you might include in parts of this section. Example text is not intended as “sample” or “model” language, or as “best practice.” You may copy and paste example text into the template, then modify it for your working lease document. Or you can learn from the examples in order to develop your own text.

Text box “Permitted Uses”

  • The Tenant is hereby permitted all normal activities consistent with the farming purposes stated above, including but not limited to the following: planting and harvesting of crops; application of soil amendments; erection of temporary fencing; pest and weed management; removal and burning of brush from field edges.
  • Tenant shall be entitled to house and graze up to twenty cattle.
  • Tenant may draw water with a portable pump from Clear Brook.
  • Tenant may take trees for Tenant’s personal use from Woodlot A, shown on the attached map.
  • Tenant is permitted to operate a retail farm stand on the Premises with staff and customer parking on Elm Lane.
  • Landowner permits, authorizes, and consents to Lessee’s undertaking of all activities incidental to the agricultural use of the Premises, provided such activities are consistent with (not prohibited by) the applicable standards under National Organic Practices (NOP). Such activities may include:
    • Application of certified organic soil amendments and other inputs, including manures, amendments and lime, in order to maintain NOP certified or certifiable status;
    • Reseeding and maintenance of pastureland;
    • Removal of brush and dead trees in the pastureland;
    • Trimming of trees along cropland, pastureland and farmstead areas to allow equipment to pass;
    • Erecting electrified and/or standard fencing, provided that any permanent fencing shall first be discussed with and approved by Landowner in writing;
  • Tenant may process vegetables/livestock/poultry in a location specified in writing by Landowner
  • The Tenant agrees to prepare an annual management plan for review by the Landlord by March 31st of each year, complete annual soil testing, and apply amendments as needed at his own expense. The Tenant agrees to proper disposal of trash and waste. The Tenant further agrees to keep open land clear and mow field edges as needed. The Tenant will maintain existing perimeter fences, where applicable, in their current condition.

Text box “Prohibited and Restricted Uses

  • Lessee agrees to abide by all terms and conditions of any current and future Agricultural Conservation Restrictions and/or similar easements placed on all or any portion of the Premises. Such terms shall not unduly restrict normal agricultural activities.
  • The Tenant shall not, unless by mutual agreement to the contrary, engage in any of the following activities on the Premises: erecting permanent structures; cutting trees; plowing up pasture; inputs not allowed under organic certification standards; raise poultry of any kind; improperly dispose of waste or trash…
  • Lessee agrees to abide by all local, state and federal laws and regulations and to apply for all applicable permits at his expense unless otherwise agreed by both Parties.

Text box “Stewardship Requirements”

  • Landowner/Lessor shall develop a Land Management Plan, attached as Exhibit D, which will address the natural characteristics of the land, outline pertinent ecological principles, and set out environmentally responsible farming practices that the Tenant shall implement throughout the Premises. The Parties shall cooperate to implement the plan and amend it from time to time as needed, with the help of mutually agreeable land use consultants where appropriate. Both the Tenant and the Landowner must agree in writing to any changes in the Plan before such changes take effect.
  • Lessee shall make agricultural improvements to Leasehold as agreed to by both Parties. The Parties agree to implement as far as possible the best management practices recommended by the USDA Natural Resource Conservation Service and to cooperate with NRCS soil and water conservation programs. Payment for any such improvements shall be negotiated by the Parties to this Lease.

Fact Sheets