This presentation was produced for a Lawline presentation on July 16, 2016. The lecture is available from Lawline. The written materials are available from my JD Supra page also. This presentation covers general considerations, active vs. passive income, the types of farm leases, price/rent negotiation, and few other types of leases used on a farming operation.
This powerpoint presentation discusses active vs. passive income with farm leases, the types of farm leases, common lease provisions, and price/rent negotiation for farm leases.
How to Start an Agriculture and Environmental Law PracticeCari Rincker
This is my presentation for the American Bar Association, Section on the Environment, Energy and Resources "Quick Teleconference" for Young Lawyers interested in starting an agriculture or environmental law practice
Overview of Common Agriculture ContractsCari Rincker
This presentation gives a cursory overview of agriculture production contracts, custom feeding arrangements, farm leases, farm machinery leases, animal leases (e.g., bull and horse leases) and partnership agreements
This powerpoint presentation discusses active vs. passive income with farm leases, the types of farm leases, common lease provisions, and price/rent negotiation for farm leases.
How to Start an Agriculture and Environmental Law PracticeCari Rincker
This is my presentation for the American Bar Association, Section on the Environment, Energy and Resources "Quick Teleconference" for Young Lawyers interested in starting an agriculture or environmental law practice
Overview of Common Agriculture ContractsCari Rincker
This presentation gives a cursory overview of agriculture production contracts, custom feeding arrangements, farm leases, farm machinery leases, animal leases (e.g., bull and horse leases) and partnership agreements
Overview of Business Entities, Liabilities and Insurance for the Food and Agr...Cari Rincker
This presentation gives an overview of business entities (e.g., sole proprietorship, general and limited partnerships, limited liability companies, corporations, cooperatives), trusts and not-for profit corporations for farms and food businesses. It then goes on to briefly discuss liability on the farm and insurance.
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Addresses structuring a medical practice in the most advantageous way for asset protection, audit risk and income risk. Also touches on financial and estate planning strategies that secure wealth for the future while protecting assets. There is also a review of potential tax planning opportunities for protecting and sturcturing wealth and estate
1: 3 Ways to Invest in Multifamily
2: How Apartments Get Financed
3: How to Choose the Best Loan
4: How to Create your Sponsorship Group
5: How to Get your Equity Out
BONUS: Multifamily Underwriting 101- How to underwrite a multifamily property. How to underwrite each line item of a P&L to get your NOI.
Different criterion for defining small holder farmers are justified from this slide.
It is recommended defining smallholders as much as possible in line with national laws and other recognized standards. Without such references, the focus should be on the technical, managerial and financial capacity of a smallholder.
Smallholders, whose output supports a population of roughly 2.2 billion people, manage about 85% of the world’s farms. Agriculture is a source of livelihood for an estimated 86% of rural people worldwide, comprising 2.5 billion people and provides jobs for 1.3 billion smallholders and landless workers (Lundy et al)
Overview of Business Entities, Liabilities and Insurance for the Food and Agr...Cari Rincker
This presentation gives an overview of business entities (e.g., sole proprietorship, general and limited partnerships, limited liability companies, corporations, cooperatives), trusts and not-for profit corporations for farms and food businesses. It then goes on to briefly discuss liability on the farm and insurance.
Planning for the Future While Protecting Your Assetsaquayle
Addresses structuring a medical practice in the most advantageous way for asset protection, audit risk and income risk. Also touches on financial and estate planning strategies that secure wealth for the future while protecting assets. There is also a review of potential tax planning opportunities for protecting and sturcturing wealth and estate
1: 3 Ways to Invest in Multifamily
2: How Apartments Get Financed
3: How to Choose the Best Loan
4: How to Create your Sponsorship Group
5: How to Get your Equity Out
BONUS: Multifamily Underwriting 101- How to underwrite a multifamily property. How to underwrite each line item of a P&L to get your NOI.
Different criterion for defining small holder farmers are justified from this slide.
It is recommended defining smallholders as much as possible in line with national laws and other recognized standards. Without such references, the focus should be on the technical, managerial and financial capacity of a smallholder.
Smallholders, whose output supports a population of roughly 2.2 billion people, manage about 85% of the world’s farms. Agriculture is a source of livelihood for an estimated 86% of rural people worldwide, comprising 2.5 billion people and provides jobs for 1.3 billion smallholders and landless workers (Lundy et al)
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This presentation was given to the Illinois Beef Association. It discusses the differences between estate planning, succession planning and business planning. Then it delves into the Who, What, When, Where, How and How Much. It too discusses how to have those difficult conversations and using mediation in this process.
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This presentation gives an overview of labor and employment law issues as it applies to farms and small to mid-sized agribusinesses. It discuss employee vs. independent contractor classifications, unpaid labor, hiring practices, minimum wage and overtime, child labor, Family Medical Leave Act, employment handbooks and firing practices.
This powerpoint presentation was used to speak to Indiana Master Cattlemen Class. It discusses estate planning, business planning and succession planning.
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This presentation was created for the Lawline.com presentation titled "Lawyer's Guide to the Veterinary Feed Directive." The Lawline presentation will be on November 3, 2016 at 3:30pm ET. The recording of the lecture will subsequently be available via Lawline.com at https://www.lawline.com/faculty/cari-rincker. This presentation is broken up in two parts: (1) General Background discussing definitions, regulatory players and the legal framework, and (2) the Second VFD Rule promulgated in June 2015.
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This presentation discusses a few of the major contractual issues that affect production agriculture including agriculture production contracts, purchase agreements (for land, livestock and farm equipment), leases (for land, livestock and farm equipment), special contracts (e.g., custom feeding arrangements, embryo transfer contracts, stocker cattle contracts, non-disclosure agreements) and partnership agreements. These materials were prepared for the Lawline presentation - more info on the webinar recording is available at https://www.lawline.com/course/overview-of-common-agriculture-contracts.
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This presentation was used as a discussion tool for the Lawline presentation about starting a building a law practice. Live webcast (May 6, 2016 at 3:30pm) and recording available via Lawline. http://www.lawline.com/cle/course/building-a-law-practice-brick-by-brick
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This presentation was prepared for Lawline -the lecture and CLE credits that go with this presentation are available via Lawline. This presentation discusses the national perspective of livestock animal cruelty law, New York farm animal welfare law, "cowboy" criminal procedure (discussing search and seizure) and my recommendations.
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This presentation was used for talking points to generate a panel discussion at the American Agriculture Law Association Annual Meeting in 2015 on the use of multimedia for food and agriculture lawyers
This presentation was given as the keynote at the Tennessee College of Law's Agriculture Law & Policy Symposium. It covers a myriad of food and agriculture law topics including Veterinary Feed Directive, Waters of the United States, Syngenta Litigation, GMO Labeling, Country of Origin Labeling, Raw Milk, Food Safety Modernization Act, Idaho's Ag Gag Litigation, Cannabis Law, and Farm Bill.
This presentation was produced for Tennessee College of Law's Agriculture Law & Policy Symposium in October 2015 and gives an overview of a myriad of direct farm marketing issues, principally Community Supported Agriculture Agreements and volunteer farm labor. It also gives an overview of direct farm marketing statistics and looks at the USDA Census of Agriculture on local food.
Lawline Presentation: Protecting the Agribusiness- Managing Contracts, Trade...Cari Rincker
This presentation was prepared for the Lawline.com presentation given on September 24, 2015 regarding contract management, trademarks and non-disclosure agreements for farmers/ranchers, agri-businesses and food companies.
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This presentation was produced for a Lawline presentation given on embryo transfer ("ET") contracts. It mostly focuses on (beef) cattle but briefly talks about sheep, goats, horses, and pigs. This presentation discusses both the animal science background and contract provisions for ET agreements. The outline is available here http://www.jdsupra.com/legalnews/drafting-embryo-transfer-contracts-for-l-52350/.
Matthew Professional CV experienced Government LiaisonMattGardner52
As an experienced Government Liaison, I have demonstrated expertise in Corporate Governance. My skill set includes senior-level management in Contract Management, Legal Support, and Diplomatic Relations. I have also gained proficiency as a Corporate Liaison, utilizing my strong background in accounting, finance, and legal, with a Bachelor's degree (B.A.) from California State University. My Administrative Skills further strengthen my ability to contribute to the growth and success of any organization.
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Here are some common scenarios in which courts might lift the corporate veil:
Fraud or Illegality: If shareholders or members use the corporate structure to perpetrate fraud, evade legal obligations, or engage in illegal activities, courts may disregard the corporate entity and hold those individuals personally liable.
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Failure to Observe Corporate Formalities: Corporations and LLCs are required to observe certain formalities, such as holding regular meetings, maintaining separate financial records, and avoiding commingling of personal and corporate assets. If these formalities are not observed and the corporate structure is used as a mere façade, courts may disregard the corporate entity.
Alter Ego: If there is such a unity of interest and ownership between the corporation and its shareholders or members that the separate personalities of the corporation and the individuals no longer exist, courts may treat the corporation as the alter ego of its owners and hold them personally liable.
Group Enterprises: In some cases, where multiple corporations are closely related or form part of a single economic unit, courts may pierce the corporate veil to achieve equity, particularly if one corporation's actions harm creditors or other stakeholders and the corporate structure is being used to shield culpable parties from liability.
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against which they can evaluate those classes of AI applications that are probably the most relevant for them.
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The committee’s focus was on ensuring the safety and security of individuals, communities, and the nation as a whole. Throughout its deliberations, the committee aimed to uphold constitutional values such as justice, dignity, and the intrinsic value of each individual. Their goal was to recommend amendments to the criminal laws that align with these values and priorities.
Subsequently, in February, the committee successfully submitted its recommendations regarding amendments to the criminal law. These recommendations are intended to serve as a foundation for enhancing the current legal framework, promoting safety and security, and upholding the constitutional principles of justice, dignity, and the inherent worth of every individual.
Daftar Rumpun, Pohon, dan Cabang Ilmu (28 Mei 2024).pdf
Overview to Farm Leases
1. Overview of Farm Leases
Lawline.com
July 16, 2015
By Cari B. Rincker, Esq.
2. My Background
• Grew up on a beef cattle
farm in Central Illinois
• Education
– A.S. in Agriculture from
Lake Land College
– B.S. in Animal Science from
Texas A & M
– M.S. in Ruminant (Beef
Cattle) Nutrition from
University of Illinois
– J.D. from Pace Law School
(2007)
3. My Background
• Chair of the American Bar
Association, General
Practice, Solo & Small Firm
Division’s Agriculture Law
Committee
• My food and agriculture
client base
– Farmers to ranchers
– Small to mid-size agri-
business
– Food entrepreneurs
4. Overview
• General Considerations
• Active v. Passive Income
• Types of Farm Leases
• Lease Provisions
• Price/Rent Negotiation
• Other types of leases
used on a farming
operation
5. General Considerations
• What is Currently
Being Done
– Many farm leases are
on a handshake
– K-State Studies show
that almost 50% of
farm leases were oral
agreements
6. General Considerations
• Advantages of Having a Written Farm Lease
– Provides guide to heirs for LL who want to lease
out farmland
– Facilitates a conversation between LL and T
– More likely that the parties have read and
understood the terms of the agreement
– Clarifies important provisions!
• Renewal terms
• Termination
• Profit sharing
7. General Considerations
• Advantages of Having a
Written Farm Lease
– Clears up tax issues
– Helps insure enforceability
(Statute of Frauds issue if
lease is 1 year or more)
– Written record of the
agreement if dispute arises
8. General Considerations
• Why Clients Don’t Want
Written Farm Leases
– Attorneys’ Fees/ Costs
– Flexibility
– Preserving the
relationship
10. Active v. Passive Income
• Social Security
– You must claim a certain
number of credits under
the social security system
before receiving social
security
– A farmer client may be
worried about reaching
this threshold as he/she
nears retirement
11. Active v. Passive Income
• “Self-Employed”
– A person is self-employed if
they carry on a trade or
business (such as
farming/ranching) in good
faith to make a profit
– Self-employed persons are
subject to self-employment
tax and receive social
security credits
“Farmer’s Tax Guide” IRS Publication 225
12. Active v. Passive Income
• Are landlords “self-employed” for
self-employment tax purposes?
– The general rule about leases is that
“income and deductions from
rentals and from personal property
leased with real estate are not
included in determining self-
employment earnings.”
– However, income from farm/ranch
leases will be included if the
landlord materially participates in
the production or management of
agriculture production.
• Thus, the issue is whether the rental
income is active or passive income.
“Farmer’s Tax Guide” IRS Publication 225
13. Active v. Passive Income
• So what is “material
participation?”
– Landlord must meet 1
of 4 different tests
– Keep these tests in
mind when drafting
the farm/ranch lease
“Farmer’s Tax Guide” IRS Publication 225
14. What is “Material Participation?”
Test 1: Landlord does three (3) of the four (4)
Pay at least 50% of the direct costs for producing crop
or livestock
Furnish at least 50% of the tools, equipment and
livestock used in the production activities
Advise/consult the tenant in the farming/ranching
activity
Inspect the production activities periodically
“Farmer’s Tax Guide” IRS Publication 225
15. What is “Material Participation?”
Test 2: Regularly
and frequently takes
part in important
decision-making and
management of the
farm/ranch directly
affecting the success
of the operation
“Farmer’s Tax Guide” IRS Publication 225
16. What is “Material Participation?”
Test 3: Works 100
Hours plus LL is
directly connected
to agriculture
production over a
period of 5 weeks
or more
“Farmer’s Tax Guide” IRS Publication 225
17. What is “Material Participation?”
Test 4: Looking at
the big picture,
the LL is materially
and significantly
involved in the
production of farm
commodities
“Farmer’s Tax Guide” IRS Publication 225
20. Cash-Rent Lease
• This is where the tenant
usually pays a fixed dollar
amount in rent (either on
a per acre or whole farm
basis).
– May be modified slightly
depending on crop yield
(i.e., increase in good years
and decrease in bad years).
21. Cash-Rent Lease
Advantages for the Landlord
• Less managerial labor
• Less administrative headache
• Predictable cash rent income
• Less concern over division of expenses and marketing
Disadvantages for the Landlord
• LL isn’t “actively engaged in farming” and income is not subject to the self-
employment tax
• LL may have difficulty getting paid
• More difficult to determine fair cash rent amount acceptable to both LL and T
• Cannot receive FSA direct or counter-cyclical payments
22. Cash-Rent Lease
Advantages for the Tenant
• Full decision-making authority/ autonomy
• Doesn’t have to divide profits from a good harvest
• Less capital tied up in the land
• Doesn’t have to share direct or counter-cyclical payments with
landlord
Disadvantages for the Tenant
• Increased risk with commodity price fluctuations
• If LL terminates lease, T may have difficulty finding a new land to
lease
• Increased risk with short-term leases with improvements to land
23. Crop Share Leases
• In these arrangements,
the landlord will share
input costs (including but
not limited to seed,
fertilizer, fuel) while the
tenant provides all of the
labor and remaining input
costs.
– Once harvested, proceeds
will be divided according
to the agreement
(normally ranging from
25/75 to 50/50).
– In this scenario, the
farmers both share the
risk.
24. Crop-Share Lease
Advantages for Landlords
• LL likely “actively engaged in farming” if
participating in management decisions & subject to
self-employment taxes
• Tenant must share FSA direct or counter-cyclical
payments with landlord
Disadvantages for Landlords
• Variable income
25. Crop-Share Leases
Advantages for Tenants
• Management oftentimes shared between an experienced LL
and inexperienced T (mentor relationship?)
• Fewer operating monies are tied up in the land
• Sharing risk of low yield and prices with the LL
Disadvantages for Tenants
• T loses autonomy because the LL is involved in management
decisions
• Sharing profits from good crop yields
• Sharing direct and counter-cyclical payments with Landlord
26. Livestock-Share Leases
Most view livestock-
share leases as a type
of crop-share lease.
The landlord may own
a portion of the
livestock animals and
typically shares the
burden of input costs,
such as feed.
27. Hybrid / Flexible Leases
• In this type of lease, the
landlord will receive a minimum
fixed rent payment while
sharing in some of the profits,
losses, and decision-making.
– a/k/a Variable Cash Rent
Agreements
– Based on crop prices / yields or
inputs
28. Hybrid/Flexible Leases
Advantages for Landlords
• Depending on how the lease is drafted, LL
may share in management decision-making to
be considered “actively engaged in farming”
Disadvantages for Landlords
• Somewhat variable income
29. Hybrid/Flexible Leases
Advantages for Tenants
•Reduced financial risk
•Reduced labor
Disadvantages for Tenants
•Still lack full autonomy as LL may be
involved in decision-making
31. General Lease Provisions
Parties
• Make sure both the Landlord/Tenant or
Lessor/Lessee is clearly identified
• Use legal names (think about DBAs)
Purpose
• Should list the purpose of the lease
• Corn production
• Direct farm marketing
• Agri-tourism
32. General Lease Provisions
• Property Description
– Address
– Legal Description
– FSA farm number
– Possible Exhibits
• Map of property
• List of buildings/structures
• List of farm
machinery/vehicles
33. General Lease Provisions
• Should be clearly stated
• If silent then year-to-year will be inferred
• Check the law in your state
• In some states, longer leases more than X number
of years must be recorded
• Some states have a maximum length of farm lease
• Usually, longer leases are better for tenants
Lease Term
34. General Lease Provisions
• Renewal Terms
– Include provisions allowing
for any renewal of the lease
• Reasonable time period
• Notice of Intent to Renew
– Should include any agreed-
upon compensation for any
fall fieldwork completion (if
applicable) upon the event
of a nonrenewal
35. General Lease Provisions
Payment
Terms
Is this cash rent, crop-share or
hybrid/flexible?
Rent amount and instructions?
Who is responsible for property taxes,
insurance and utilities?
Penalties, interest and security for late
payment
36. General Lease Provisions
• Insurance
– Is the landlord or tenant
required to have insurance?
– If so, what type?
• Farmowners’ Comprehensive
Liability Policy
• Commercial Insurance
• Products Liability Insurance
– What limits?
• 1 mil. per occurrence?
Think about the type
of tenant operation
37. General Lease Provisions
• Reimbursement of
Expenses - In some crop-
share or hybrid leases, the
tenant may seek
reimbursement for crop
nutrients (e.g., lime), the
cost of improvements or
other operational
expenses.
38. General Lease Provisions
Duties and
Prohibitions
Desired/prohibited farming practices
Maintenance of farm buildings/fences (including temporary structures)
Controlling noxious weeds/ brush
Soil conservation practices
Making improvements (e.g., buildings, renewable energy)
Requirement to reseed plowed field
Use of fertilizer
39. General Provisions
• Duties & Prohibitions
– Keep in mind the “Right-to-Farm” law in your state
• In New York, for example, an agriculture producer cannot be
sued for a nuisance claim if they are performing a “sound
agricultural practice” within an agriculture district
– Thus, what part of the farm is in an agriculture district?
– Are there specific activities that the LL would like to proscribe?
– Some leases define Good Management Practices
(“GMPs”)
– Duty to comply with farm animal welfare law at the
federal, state and local level?
40. General Lease Provisions
• Duties & Prohibitions
– Prohibition or
allowance for certain
activities
• Agri-tourism (hayrides,
petting zoos)
• On-farm direct
marketing (e.g.,
farmstands or pick-
your-own)
• On-farm poultry
slaughter
41. General Lease Provisions
• Duties & Prohibitions
– It is especially
important to think
about decision-making
and management in
crop-share or hybrid
lease situations
• Active v. Passive
Income
42. General Lease Provisions
• Duties & Prohibitions
– Will the tenant have any
reporting requirements?
• What must be reported and
when?
• Examples
– Grid sampling
– Yield monitor data
– Weigh wagon results
– Test plot results
– Soil tests
43. General Lease Provisions
• Fertilizer: In most farm leases, the
issue of fertilizer should be
addressed.
– Most crop leases stipulate that the
same amounts of fertilizer and lime be
applied annually.
– Some leases state that soil tests
should be performed to ensure for
proper fertility levels (e.g., flight
map/farm plan map with matching soil
tests in each filed).
44. General Lease Provisions
• Environmental Law
– Have tenant promise to comply
with federal, state and local
environmental laws
• What are the potential issues?
• Duty to minimize certain activities
that may cause environmental
conservation?
– Soil conservation provisions?
– Hazardous material provisions?
45. General Lease Provisions
• USDA Farm Service Agency
(“FSA”) Farm Program Payments
– If applicable to the LL or T, federal
farm programs should be addressed
– Examples
• Conservation Reserve Program
(“CRP”) Payments,
• Conservation Security Program
(“CSP”) Payments,
• Direct and Counter Cyclical Program
Payments (“DCP”)
– Lease should describe who will be
receiving the federal farm payments
and how the payments will be
shared
• Cash rent vs. Crop-Share
46. General Lease Provisions
• Default: Your lease may
include a list of actions
that count as defaults in
the terms of the lease,
specifying whether part or
all of the listed defaults
can be cured or waived by
the other party.
47. General Lease Provisions
• Notice: Include notice
provisions, to specify how
and when to give notice of
default, notice of intent to
terminate the lease, or
any other notice needed
to make the terms of the
lease work.
48. General Lease Provisions
Ability to Assign or
Sublease: The lease should
state whether (or under
what conditions) the tenant
can assign or sublease its
obligation to another
farmer.
49. General Lease Provisions
• Landlord’s Right to enter the
property to:
– Make a reasonable inspection
– Make repairs and/or installations
– Show the premises to prospective
buyers
– Collect rent
– Deliver a notice to terminate the
tenancy
• Security Interest for Landlord
– Crops/livestock
50. General Lease Provisions
• Termination
– The lease should include procedures for terminating the lease,
either voluntarily or involuntarily (for example, in case of a
default).
• Requirements for the Notice of Termination
• Will the lease terminate upon death of either party?
• Make sure the procedures comply with the law in your state
– It should also note any reimbursement or crop nutrients, lime
and/or completed fieldwork upon the termination of the lease.
– These provisions should also include the tenant’s right if the
property is transferred or condemned during the lease period and
reimbursement provisions for a crop still in the ground when the
lease is terminated.
51. Miscellaneous Provisions
Confidentiality Severability Clause
Alternative Dispute
Resolution
Choice of Forum Choice of Law Indemnification
No Joint
Venture/Partnership
Intellectual Property
Signature Block/
Notary Block
52. Miscellaneous Provisions
• Alternative Dispute Resolution
– Exception for Emergencies-
Going to Court
– Negotiation Stage
– Non-binding Mediation
• Agriculture mediation program?
– Non-binding vs. Binding
Arbitration
• Rules of the American Arbitration
Association?
• Location of arbitration
53. Miscellaneous Provisions
• Intellectual Property
– Will the tenant be doing
business under the
landlord’s name?
– Prefer “licenses” to
intellectual property such as
trademarks and copyrights
(whether registered or not)
in a separate document
54. Rent/Price Negotiation
• Each side should look at the fair
market values in their areas
– Tenants can be criticized for having
more “informational power” when
negotiating rental price
• Landlords tend to be more “out of
touch” with market trends
• If representing the landlord, have a
candid discussion with client re
rental price
– Most landlords don’t ask for rent
increases when they could
– Should rent in the lease be indexed
for inflation?
55. Rent/Price Negotiation
• Factors involved in rent
determination
– Cash value of the farm
– Comparable farm leases in the
area
– Production contribution the
farm can make to the tenant’s
operation
• How productive is the land?
• Is the tenant using the property
to the most optimal use?
• Are the improvements helpful to
the operation?
• Is there adequate water?
• Has the property been
adequately maintained?
58. Meeting With Clients
• Farm clients prefer flat
fees vs. billable hour
– Can be done effectively for
contracts like farm/ranch
leases
– See Survey Results -
http://www.slideshare.net/
rinckerlaw/stategies-for-
developing-and-retaining-
ag-clients
• Client Questionnaire
• Developing Checklists
59. Questions on Being an Agriculture Lawyer
• Fridays with Cari
Skype Calls
– First Friday of the
month at 2pm ET
– RSVP to
cari@rinckerlaw.com
– No charge
60. Oh, P.S. – I Wrote a Book!
Cari B. Rincker & Patrick B.
Dillon, “Field Manual: Legal
Guide for New York Farmers
& Food Entrepreneurs”
(2013)
Available at
http://www.amazon.com/Fi
eld-Manual-Legal-Farmers-
Entrepreneurs/dp/1484965
191
www.newyorkagriculturelaw.com
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Editor's Notes
New York- more than 3 years must be recorded
Iowa- cannot be more than 20 years
In a study performed by K-State University, the length of the leases were as follows:
1 year – 27%
2 years – 3%
3 years – 21%
4 years or longer – 32%
5 years – 10%
Other – 22%
Practical Pointer: Review leases with an eye towards seeking indemnification and hold harmless agreements from any tenant who accepts manure under a manure-management plan or manure-easement arrangement, because you face at least the potential for legal liability to third parties for any nuisance created, when a tenant uses manure as part of the operation.