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Permitted, Restricted and Prohibited Uses

What is the definition of agriculture or farming – and what constitutes a “normal” or “generally accepted” farming practice?

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.


How do I know what is permitted or prohibited in a lease?

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.


What happens if a tenant’s proposed activity is in conflict with an easement on the premises?

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.


What is a stewardship, land management or conservation plan?

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.