Land Access

Welcome to the Land Access section. This page details the process of accessing public lands, the purposes of and best practices for land trusts, and the urban farming land inventories conducted in cities around the country. There is also information regarding lease agreements and easements, particularly relevant to non-profit urban agriculture projects.

NOTE: More information is on the way regarding land tenure and land sovereignty and the tools to support urban gardens and farms in perpetuity.

PUBLIC Land Access

Public Land, or city-owned property, can be used in various ways to benefit the city through urban agriculture. Many cities have developed policies to support urban agriculture on public land. To this end, some cities have developed their own city-run programs to foster urban agriculture on public lands, while others have amended zoning and leasing policies. Still others have changed land transfer and lease policies, to allow for the transfer of public land into land trusts or banks for community use.

Public Land Use Agreements

To view and download SELC’s Sample Agreement to Use Property for Food Garden click here.

See also ChangeLab Solutions’ Dig, Eat, & Be Healthy: A Guide to Growing on Public Property.

Important Elements of a Public Land Use Agreement:

  • Land: Specifications of size and location
  • Rent: Cost to Tenant
  • Use of Land: Specification of permitted uses and prohibited uses (i.e. sales, tree removal, fires, etc.)
  • Term: Duration of lease, options for lease renewal, and expected tenure of project on land
  • Building and Improvements: Clarification of building types prohibited and permitted (i.e. carports, storage, temporary shelters, etc.) and improvements (i.e. fencing, garden beds, landscaping)
  • Right of Entry: For example, restrictions to farm employees, contract workers, volunteers
  • Hours of Use: Days and times of activities, clarification of over-night stay
  • Noise: Expected decibels of noise pollution created
  • Animals: Use of animals and restrictions thereof
  • Expected traffic: Estimated number of trips to the site and number of people expected on plot at any given time
  • Growing Practices: Farmers’ use of tools/machinery and use of pesticides, fertilizer, fungicides, etc. (on the City’s end, this could be a selection criteria; for example projects growing organically could rank higher than projects proposing to use these chemicals)
  • Environmental Impacts: Management of runoff and water pollution
  • Water Usage: Agreement on source, use, and payment
  • Routine Maintenance: Specifies responsibilities of landowner and farmer in maintenance of plot’s appearance and preventing hazards
  • Subleasing Policy: Permitted/prohibited and where liability for subtenant lies
  • Garden Produce: Clarification of ownership of produce from the land
  • Compost: Agreement on use and location of compost pile and perhaps use of landowner’s acceptable yard and kitchen wastes
  • Payment: Type and amount of payment; can be monetary or in-kind through share of crops
  • Liability: Two-way release of liability; each party gives indemnity to the other over specific scenarios and legal responsibilities for their respective uses of the land.

The majority of the above terms were gathered from Alymer Backyard Farms’s Land Use Agreement, Philadelphia’s Redevelopment Authority Land Use and Policy Study (pages 50 and 58), and Diggable City–Portland Urban Agriculture Findings and Recommendations (Online p. 36/ PDF p. 39).

1. Alymer Backyard Farms is a small urban farm made up of multiple backyard sites in Aylmer, Quebec. Though the farms’ land use agreement was intended to be between a private land owner and a private farming entity, it is provided here since the terms included therein are also applicable to a land use agreement between City and tenant.

2. Philadelphia’s Redevelopment Authority Land Use and Policy Study (pages 50 and 58) include sample agreements between the City of Milwaukee and Tenant and City of Seattle and Tenant for temporary urban agriculture use of city land.

3. Diggable City Phase II Report–Urban Agriculture Inventory Findings and Recommendations is a 2006 report developed by the Urban Agriculture Subcommittee of the Portland Multnomah Food Policy Council. In addition to many helpful findings, this report provides a standard lease between the “landlord,” Metro Regional Parks and Greenspaces, and a lessee on page 36 of the online document and page 39 of the PDF. Though some of the terms in this standard lease are unfavorable for the lessee (e.g., Term #7, which addresses the lessee’s many responsibilities re: irrigation), it exemplifies what a City can do to facilitate urban agricultural uses of public lands, like identify as many issues as possible upfront in the lease language in order to avoid problems.

4. The Urban Farm Collective is a program of Oregon Sustainable Agriculture Land Trust (OSALT), a 501(c)3 non-profit organization that accepts donated land and holds it in perpetuity as agricultural land, for the purposes of education and research into sustainable agriculture. The Collective is looking for land in NE Portland and gardeners.

How Some Cities Promote UA on Public Land

Baltimore, Maryland:

Baltimore has recognized the value of urban agriculture and has made certain policy changes and programs to provide support for gardeners and farmers. The Power in Dirt Initiative aims to reduce systemic barriers to vacant lot revitalization, by simplifying the process of the Adopt-A-Lot Program supported through the Housing Authority of Baltimore City.  Baltimore residents are able to view a list of vacant lots online, apply to adopt a lot for gardening or greening purposes, and can receive water access during the gardening season. All of this can be done online. The city also contributes resources like machinery, mulch, and composting to help cover the most expensive items needed to start a community-managed open space on vacant land. Power in Dirt Initiative,  Adopt-A-Lot Program

Similarly, in 2009, Baltimore’s Board of Estimates passed a policy allowing for the sale of city-owned lots for $1 to qualified land trusts. Baltimore’s Office of Sustainability and Department of Planning partnered with Baltimore Green Space, a qualified Community Land Trust, to create a set of criteria and a process for the transfer of these $1 lots. Preserving Community Managed Open Space: Criteria and Process

Baltimore also has a City Farms Program, established in 1978, which provides gardening plots for urban gardeners within seven of Baltimore City’s city parks. Today there are about 640 plots for urban gardeners, which include access to city water and hoses, wood chips, and leaf compost. City Farms Program

Baltimore also has a Request for Qualifications that will make pre-identified city owned vacant lots available for farming by request. Qualified citizens can apply for a plot of land at least 1 acre large to be used for urban agriculture as a way to develop successful entrepreneurial farmers, address the problem of food desserts in certain neighborhoods, and transform vacant lots for social, economic, and environmental benefits. Baltimore City’s Department of Planning and Department of Housing and Community Development will review statements of qualifications from farmers to lease certain public lands without any immediate or mid-term development purposes. Over the course of the next three years Baltimore aims to lease up to 35 acres of land for this use. Request for Qualifications

Cleveland, Ohio:

Cleveland has a long history of support for urban gardens and food production. The city provides land and resources to promote urban gardening, especially for food production.Cuyahoga County Land Bank has allowed for the conversion of 120 vacant lots into community gardens, nurseries, pocket parks, and orchards. Cuyahoga Land Bank

Cleveland was the first city to pass zoning designation for community gardens. The Urban Garden District Zoning Ordinance, passed in 2007, makes it possible for a parcel of land to be designated as community garden therefore making replacing a garden a public process, and giving gardeners the right to protect it, although it does not guarantee that the garden can never be lost. (Dustin Brady, Plain Press, “Councilman Introduces First Zoning Designation for Community Gardens.” 2007)

Chicago, Illinois:

Chicago recognized the importance of Urban Agriculture in the mid-1990s and responded by creating several routes through which city owned land can be used for gardening and agriculture. In 1996, several city agencies partnered to create NeighborSpace, a non-profit community land trust, which helps community gardens acquire and protect their land. NeighborSpace website.

Other gardens and youth gardening programs have also been established on Chicago Park District Land, where individuals can apply for garden plots. Chicago also has the Adjacent Neighbors Land Acquisition Project (ANLAP), which enables residents living next to vacant lots to purchase the lot at a discounted rate, if they plan to “improve” it. City of Chicago- ANLAP

Milwaukee, Wisconsin:

The City of Milwaukee released a citywide Comprehensive Plan in 2010 that encourages urban agriculture and gardening on vacant lots and underused land. The city offers one and three year leases for urban agriculture on public owned land. (City of Milwaukee- Urban Agriculture) Milwaukee Urban Gardens is a non-profit community land trust that works with community gardens to negotiate long term leases with the city.

Additionally, in 2009 the City of Milwaukee also sold two vacant lots to Walnut Way Conservation Corporation to be used as an urban agriculture field-testing station operated by UW Madison’s School of Agriculture to determine best management of urban soil fertility and possible contaminants. (Urban Agriculture in Milwaukee)

Minneapolis, Minnesota:

In 2008, The City of Minneapolis partnered with the Department of Health and Family Support to adopt Homegrown Minneapolis, a citywide initiative, which aims to promote the growth, sales, and consumption of healthy, locally grown foods in the city. The Homegrown Minneapolis Community Gardens Pilot Program, made 18 leases available for community gardens on City-owned lots for the first time in 2010. These 18 lots were selected for their “non-buildable” qualities and will remain available for years of gardening even as the economy changes and redevelopment picks up. Experienced community garden groups may be eligible for three- to five-year leases, while groups gardening for the first time will start with one-year leases.  Lots are offered for a nominal fee of one dollar and the City requires a security deposit and liability insurance. City of Minneapolis Urban Agriculture News Releases

In addition to this program, Minneapolis has an extensive number of gardens throughout the city. In 2010, a survey found that there were 94 community gardens, half of which were on city owned land, including schools. Urban Agriculture Policy Plan

Oakland, California:

The City of Oakland Parks and Recreation oversee administration of the community gardens with non-profits to provide lots on parkland for people to grow gardens. Plots are assigned on a rolling basis, as space becomes available, giving preference to Oakland residents. If they are granted a plot, there is an annual $25 membership due, and an obligation to comply with Parks and Recreation’s rules. The plots are for individual use, and gardeners are cautioned, “the sale of produce grown on public property for personal gain is prohibited by law.” Oakland Parks and Recreation: Community Gardens

Proposition 84 is a California bond initiative, approved in 2006, that reserves 5.4 million dollars in bonds for projects involving water quality and access, park improvements, and natural resource and park preservation. Through this initiative City Slicker Farms submitted a farm park design and was awarded $4 million grant to purchase a 1.4 acre parcel of land to promote their mission of healthy, organic access to food through backyard gardening, market farms, farm stands, educational programming, and advocacy. City Slickers Farm Website

Portland, Oregon:

Portland has long supported urban agriculture initiatives and prioritized sustainability and eco-friendly practices. In 1975, the Department of Parks and Recreation adopted the Community Garden Program (CGP). Through CGP, farmers can rent an individual plot, and receive water access, fencing, and support to start their garden. In addition the city has a well-established system of municipal community gardens providing for community use of city-owned property if prospective gardeners meet a set of nine criteria. Portland has also established a willingness to enter into extended leases, for example, a ninety-nine year lease with Zenger Farm.

Richmond, California

The City of Richmond’s Urban Agriculture Assessment is a 2011 report recommending that the city develop a standard lease template for urban agriculture on private land. The lease template would be for adaptation and use between organizations and private property owners. The report explains that the city should first identify as many potential issues as possible to address in the lease template to prevent problems. It then goes on to list some of those issues, such as use of pesticides and fertilizers. This is discussed on page 44 of the online document, page 56 of the PDF. Beyond land access, this report explores what types of urban agriculture activities exist in the city today; what types of activities might be developed in the future to meet identified needs; and how the food produced through urban agriculture activities fits into the broader system of food production and distribution that shapes how Richmond residents eat and can be accessed here.

Seattle, Washington:

Seattle is a leading city in urban agricultural policy, prioritizing community gardening and farming as a permanent use of land and an important tool to improve neighborhoods. Seattle’s P-Patch Program, leases gardening plots on public land to community member applicants. The program is operated through The Department of Neighborhoods, in conjunction with the P-Patch Trust, Seattle Housing Authority, and other agencies. The city currently has 75 active gardens, serving 4,400 residents. In addition to these existing P-Patch locations, residents are encouraged to identify vacant lots suitable for growing food, and can receive support from P-Patch program staff to evaluate and secure access to a proposed site. P-Patch Community Gardening Program

In April 2011, the City Council of Seattle adopted new legislation to allow a Vacant and Underused Land Pilot Program, which identifies empty public lots safe for use, and allows three year leases of this land for “active uses,” including horticulture, retail sales, and mobile food vendors. Council Bill 117046

Seattle also supports a number of other urban agriculture projects on public land, run by the Department of Neighborhoods and the Parks and Recreation Department. Some examples of these projects are the Beacon Hill Food Forest, Seattle Community Farm, and Rainier Beach Urban Farm and Wetlands Project.

The Beacon Hill Food Forest is a public food forest, based on the concept of permaculture, with the intention of creating an entire forest of edible or useable plants for community use and programming. The Beacon Hill Food Forest is the largest scale project of its kind, aimed at creating a more self-sustainable community through much support from public agencies and other non-profit organizations. The property is adjacent to a reservoir and owned by the Seattle Public Utilities Department, although it will be managed under a Memorandum of Agreement by the Department of Neighborhoods.  The Utilities Department required some special considerations in order to protect the water resource. Beacon Hill Food Forest

The Seattle Community Farm is another urban agriculture project on publicly owned property, aimed to educate, inspire, and increase food access to the residents of Southwest Seattle. The farm is located on a ½ acre plot of land owned by Seattle’s Housing Authority. It started in 2009 from a partnership with Lettuce Link, Seattle Housing Authority, and the Seattle Department of Neighborhoods P-Patch Community Gardening Program, with funding from a USDA Community Food Grant and the community gardening portion of the 2008 Parks and Green Spaces Levy. The community farm grows produce for local food banks, and has a work trade program for volunteers who have trouble affording produce, and can receive bags of produce for two hours of volunteering.  Seattle Community Farm

Urban Farming on public land has some history in Seattle.  A remenant farm owned by the Seattle Parks Department is home to an urban farm pilot program, manged by the P-Patch community gardening program, which provides 2500 square feet of gardening space to low income farmers who sell produce in their local neighborhoods.  The same parcel also hosts a food bank farm managed by a local non-profit that produces more than 20,000 pounds of fresh produce for local food banks and hot meal programs.  The P-Patch community gardening program also cooperates with the Seattle Housing Authority to provide two CSAs and farm stands on housing authority sites.  The farmers are low income immigrants and refugees with horticulture experience.  Marra Farm,  Seattle Market Gardens

Another project supported on public land is the Rainier Beach Urban Farm and Wetlands Project, which aims to facilitate innovative green infrastructure development through the renovation of the existing Atlantic City Nursery on the site, to an organic urban farm and wetlands restoration site. The Atlantic City Nursery is owned by Seattle Parks and Recreation, and was closed in 2010. Currently, the Rainier Beach Urban Farm and Wetlands Project has been chosen by the Parks and Green Space Levy, which supports community-initiated projects for green space, through funding and other resources. Rainier Beach Urban Farm and Wetlands Project

City Land Inventory Studies
Urban Garden Land Trusts
What is a Land Trust?

A land trust is a non-profit organization that actively works to conserve land by undertaking or assisting in land or conservation easements acquisition, or by its stewardship of land through purchase, lease, or easements. Land trusts are used for a number of different purposes, including creating affordable housing, preserving open space, promoting urban agriculture, and preserving or creating community gardens. There is a distinction between conservation land trusts and community land trusts, not so much in their function, but in their goal for the use of the land.

While Conservation Land Trusts are mainly focused on the acquisition of land for the purpose of conservation, Community Land Trusts acquire land for the benefit of a community to provide access to that land for community members.  These uses range from the creation of affordable housing to the preservation of green spaces, parks, and gardens. Types of Land Trusts

The Community Land Trust

For the purposes of Urban Agriculture, Community Land Trusts are used frequently because of the community-based nature of gardening and farming in an urban context. Many Community Land Trusts have been created across the nation to aid community gardens and farms in land access issues. The basic mission and main function of each CLT is to protect existing community gardens through acquisition and management of their land. Avenues for land acquisition depend upon the city, and can range from lease agreements to public land sales to easements to land banking.

Beyond their main function as a land holding entity, many CLTs provide basic resources to promote urban agriculture and community development. The most fundamental services that CLTs often provide are basic liability insurance and access to water. Some CLTs extend their services into more technical assistance — providing resources such as seeds, tools and equipment, gardening education classes, youth leadership programs and job training.

Examples and Case Studies

Urban Agriculture Land Trusts Case Study – An extensive report on U.S. Land Trusts created by the Public Interest Law Center of Philadelphia.

“Hybrid Vigor”– A Columbia University Masters thesis exploring a range of land tenure arrangements and strategies to increase land security for community gardens.

PRIVATE Land Access
Private Land Use Agreements

In addition to using public lands and vacant private lands for farming, organizations and commercial farms are finding innovative ways to use privately owned lands such as large backyards to grow food. As in any land use agreement, defining the terms of use is very important. These terms are meant to define the rights and responsibilities of both parties: the landowner and the farmer.

To view and download SELC’s Sample Agreement to Use Property for Food Garden click here.

Important Elements of a Private Land Use Agreement:

  • Land: Specifications of size and location
  • Use of Land: Specification of uses and by whom
  • Term: Duration of use, protocols for renewal, and farm’s rights if land is sold mid-season
  • Right of Entry: For example, restrictions to farm employees, contract workers, volunteers
  • Work Schedule: Days and times of most farming activities with exceptions by landowner permissions
  • Growing Practices: Farmers’ use of tools/machinery and landowner’s responsibility to restrict activities like use of chemicals in order to maintain the farm’s organic standards.
  • Water Usage: Clarification of source, use, and payment
  • Garden Maintenance: Specifies responsibilities of landowner and farmer in maintenance of plot
  • Garden Produce: Clarification of ownership of produce from the land
  • Compost: Agreement on use and location of compost pile and perhaps use of landowner’s acceptable yard and kitchen wastes
  • Payment: Type and amount of payment; can be monetary or in-kind through share of crops
  • Liability: Two-way release of liability; each party gives indemnity to the other over specific scenarios and legal responsibilities for their respective uses of the land.

The majority of these terms were gathered from Alymer Backyard Farms’s Land Use Agreement.

Alymer Backyard Farms is a small urban farm made up of multiple backyard sites in Aylmer, Quebec. The farms’ land use agreement has been provided here as an excellent example of how to establish such an agreement between a farming party and a land owner.

Additional Resources:

  • Ground Rules: A Legal Toolkit for Community Gardens – A toolkit published by ChangeLab Solutions designed to help overcome the legal and practical barriers to establishing community gardens on land that is not municipally owned. It provides several model agreements and other documents that can easily be tailored, simplifying the process of building an agreement that benefits both landowners and the community.
  • For a Community Garden Land Use Agreement between landowner and community garden entity, see here. This agreement is between the “Visiting Nurse Association of Chittenden & Grand Isle Counties” and two Co-Coordinators of a group called “Grow Team ONE.” Note: this agreement models some helpful terms, but it is missing some important protections for the community gardening organization
  • For use of private empty land see the Land Access Checklist created by Willow Rosenthal and Novella Carpenter available here. Note:this agreement does not include a comprehensive list of what should be included in a land use agreement and also does not specify what parts of the proposal to the landowner should be included in the document of the land use agreement/lease.
  • Landshare.net – A UK-based site connecting growers to people with land to share.
Adverse Possession

Adverse possession, sometimes referred to as “squatters’ rights,” is a legal tactic that enables an individual or organization to gain possession of land.

Case Study: Central Club for Boys and Girls

Adverse possession has been a successful tactic for one organization in Philadelphia.  The Central Club for Boys & Girls had served as the vacant land steward for eight abandoned lots in South Philadelphia, starting in the 1930s and 40s.  Central Club used these lots to create green, garden, and open space for community building and programming and has served as an anchor community institution for over 60 years.  In 2010, Central Club was thrilled to gain possession of eight parcels through a quiet title action based on adverse possession.

Unfortunately, gaining title to the land brought with it decades of assessed taxes from prior owners.  Facing sheriff’s sale of the property, Central Club, with the Garden Justice Legal Initiative, has won a year’s worth of stay of the sale to allow time to file nonprofit real estate tax exemption applications.

See southphillyreview.com/news/cover-story/Taxing-times-at-Central-Club-157601275.html

The Legal Requirements of Adverse Possession

To fulfill the legal requirements of adverse possession, an individual or organization must essentially squat on a parcel of land for a requisite amount of time (with or without knowledge that one is squatting).

The requirements vary by state, but most states require the squatter’s use be

  • (1) continuous for the statutory period
  •  (2) actual
    • considered use of the land as the owner would use it—a use in line with the character of the land.
  • (3) open & notorious
    • means the squatter is not concealing his/her use of land.
    • enables the actual owner to see that another is using the property.
  • (4) continuous
  • (5) hostile and
    • the squatter cannot have permission from the owner.
  • (6) exclusive
    • Exclusive use implies that the squatter is treating the property as if it is his/her own, to the exclusion of others.1

Each of the latter five elements must be satisfied throughout the time required by state law.  The squatter cannot abandon the property once s/he begins to adversely possess it.

Statutory Period

  • One of the biggest challenges to gaining title through adverse possession
  • For example, in Pennsylvania, the statute requires a squatter to meet twenty-one years of adverse possession requirements.  Most statutes require similar lengths of time.
    • Illinois: 20 years
    • Missouri: 10 years
    • Ohio: 21 years
    • Pennsylvania: 21 years
    • Maryland: 20 years
    • Texas: 10 years2
  • Many older gardens that have developed into true community assets have been stewarded for many years by a group, making an adverse possession claim easier to fulfill.3

States with More Stringent Requirements

  • Not only do states vary in terms of the statutes of limitation, but the legal requirements can be slightly different.
  • It is important, therefore, that those looking to adverse possession as a tactic for land tenure regard laws specific to their state
    • Massachusetts, Michigan, New Jersey, and Texas require an “intent to possess” in addition to the elements outlined above.
    • California requires the squatter to pay property taxes for five years
    • New York, Washington, and Oregon require a “claim of right,” or belief that one has rightful claim to the property, in order for the squatter to gain title.4

Conclusion: Pros and Cons of Adverse Possession

  • The Central Club story demonstrates that while adverse possession can be a helpful tactic for individuals or groups using otherwise vacant land for many years, it is a complicated process with potentially unanticipated consequences.
    • Pros
      • clear path to land tenure, often less expensive than buying property
      • solution in cities with abundant vacant land, where no policy has prevented the land from continuing to exist unused
    • Cons
      • quiet title actions take time and resources
      • squatters must fulfill many elements for a long period of time
      • prospective and retroactive taxes, as well as other debt on the property may exist
      • the squatter must garden without the permission of the landowner for the statutory period to start, so short-term agreements with the owner do not help an adverse possession claim.
The Written Easement/Lease Agreement 

(For related information, see the Liability, Risk, and Insurance section)

Once you have access to land, you will need to formalize your agreement with the landowner as to the appropriate uses of the land. No matter the arrangement between you and the homeowner, it will be important to put the yard-sharing agreement into writing.  A written agreement will protect both the homeowner and the organization from problems arising from untimely termination of the relationship, responsibilities for caring for the garden, liability, and other concerns.  A written agreement will essentially create a lease or a temporary easement.

Without a written agreement, a variety of things could happen in the event of a dispute.  A court might characterize the arrangement as a right to use land under a “license,” which can be revoked at will.[4]  In this case, the owner of the land could revoke the license at any time.  However, if the garden organization has expended considerable money or time in reliance on the license, a court might prohibit the landowner from revoking without notice. [5]   A court may also look at the arrangement as a “lease.”  When there is no written lease, the court may apply some basic rules of landlord-tenant law, which may include a minimum notice requirement, for example.  In some cities, there may even be a rule that the landlord (the homeowner) cannot evict the tenant (the gardeners) except for “just cause.”   Putting the agreement into writing will help avoid having a court apply any of these default rules.

The agreement will essentially create a free lease or a temporary easement.  There are slight differences between the two.  A lease would give the organization a right to possess the designated portion of the yard.  Leases typically give the lessee exclusive rights to use the land; however, the organization could still draft the lease agreement to allow the homeowner to use the yard.  An easement is a right to use, rather than possess, the portion of the yard.  With an easement, the homeowner still has the right to use his/her yard, but must not unreasonably interfere with the organization’s use of the yard. [6]  An example of unreasonable interference would be intentionally destroying plants.

While either a lease or an easement could be used to create the yard-share arrangement, the circumstances look more like a traditional easement, since it gives the organization a right to use the land, but does not exclude the homeowner.  Creating a lease might subject the homeowner and organization to more rigorous rules of landlord-tenant law, which vary from jurisdiction.  Arranging the yard-share as an easement may give the parties more flexibility to dictate the terms of the agreement.

While an easement cannot be terminated at will, it can be created for a limited time and can be terminated if and when certain conditions are met.  In the case of the yard-share agreement, the easement could be terminated, for example, in the event that the homeowner moves or if the garden goes unattended for three or more weeks.  To terminate the easement, the homeowner and organization should execute another written agreement.  If the easement is created with a written agreement, it cannot be terminated simply with an oral statement of termination.[7]  If the organization proceeds to abandon the property and fails to execute a release deed with the homeowner, termination of the easement can be inferred after enough time has passed to confirm the organization’s intent to abandon it.[8]

As a side note, the easement could also be referred to as a “profit.”  A profit is a privilege to remove a product from the land; a profit could be a right to fish, to graze animals, or cut wood, for example.[9]  However, the arrangement will be treated the same by law whether it is considered an “easement” or “profit.”[10]

Concerns to Address with the Written Lease Agreement/Easement

Concerns of a property owner may include:

  • Being able to revoke the agreement under certain circumstances
  • Limiting the number of volunteers entering the property and the hours during which they may come
  • Receiving a portion of the produce
  • Limiting liability for any injuries a gardener might sustain
  • Ensuring compensation for any damage done to the property
  • Ensuring that the garden is not neglected
  • Limiting potential nuisances (noise or parking problems)
  • Influencing the design of the garden to ensure that it is aesthetically pleasing

Concerns of the community organization may include:

  • Ensuring access to the garden
  • Ensuring use of the garden until the end of a growing season
  • Verifying that the land is free of hazards
  • Agreeing on the homeowner’s portion of responsibility in caring for the garden
  • Designating a percentage of the produce that will be given to the organization
  • Giving volunteers access to bathrooms
  • Gaining access to certain resources, such as water and compost.
  • Having a plan for moving plants in the event that the land-share arrangement must be terminated in the middle of a growing season.

Suggested Components of the Written Agreement:

  1. What portion of the land will be used and how it will be demarcated?
  2. What will or will not be grown there?
  3. Who will be cultivating it (volunteers only, or combination of residents and volunteers)?
  4. When they will be cultivating it (seasons, days, hours)?
  5. Who keeps the produce?
  6. Duration of land-share arrangement: a possible arrangement would be a lease that lasts for one planting-harvesting cycle, and that is renewable each year.
  7. Situations under which the agreement can be revoked by homeowner.  These might include:
    1. The homeowner moves out of the house.
    2. The organization violates key terms of the agreement, such as neglects the garden.
    3. The homeowner is sued by a homeowners’ association for nuisance related to the garden.
  8. Situations under which the agreement can be revoked by organization.  These might include:
    1. The homeowner intentionally damages a substantial portion of the garden.
    2. The organization shuts down.
    3. The organization made good faith effort to keep up garden, but didn’t have enough volunteers/resources, etc.
  9. What to do if the agreement is terminated:
    1. Arrangements for moving plants if the agreement is terminated in the middle of the season.
    2. Whether the organization is obligated to restore the yard to its original appearance.
  10. What are safety concerns and what will each party do to avoid risk
    1. Access to water for irrigation
    2. Volunteers’ access to bathrooms
    3. A rough agreement as to the design of the garden.

Some additional resources

Success Stories

Morris v. Adams, 903 So. 2d 638 (La. Ct. App. 2005)

  • Multiple parties’ parents and grandparents had lived on and farmed the land together over more than thirty years beginning sometime in the mid-20th century. Their “tacking” of adverse possession from one generation to the next superseded the claim of the couple that purchased the land in 1996

Berry v. Houston, 195 So. 2d 515 (Miss. 1967)

  • Two parties, Mrs. Ellett and Mr. Berry, sought to quiet title to Church property, which they claimed to have adversely possessed for more than ten years. Mrs. Ellett won, in large part because her possession was open and exclusive and she marked off the boundaries of the property she was claiming with timbers and fencing. Mr. Berry, on the other hand, lost for failure to establish that his possession of the Church’s property had been exclusive, continuous, or without permission

Vezey v. Green, 35 P.3d 14 (Alaska 2001)

  • A woman was orally given property by her grandparents and acted as owner of the property. The Court found that she had gained legal ownership by adverse possession, but there remained a question as to how much of the property she now owned – she would only be given title to the land that she actually possessed.

 

Law Articles
  • Dana May Christensen, Securing the Momentum: Could A Homestead Act Help Sustain Detroit Urban Agriculture?, 16 Drake J. Agric. L. 241, 250 (2011) (detailing the variety of tools that may be helpful in sustaining urban agriculture, including easements and land trusts)
  • Jane E. Schukoske, Community Development Through Gardening: State and Local Policies Transforming Urban Open Space, 3 N.Y.U. J. Legis. & Pub. Pol’y 351, 368 (2000) (the benefits of community gardens and different ways to promote the idea)
  • Dorothy A. Borrelli, Filling the Void: Applying A Place-Based Ethic to Community Gardens, 9 Vt. J. Envtl. L. 271, 294 (2008) (the benefits of community gardens and different ways to promote the idea, along with examples of unsuccessful attempts)
  • Scott Andrew Shepard, Adverse Possession, Private-Zoning Waiver & Desuetude: Abandonment & Recapture of Property and Liberty Interests, 44 U. Mich. J.L. Reform 557, 587 (2011) (putting abandoned property to good use through AP)
Footnotes

  1. Becky Lundberg-Witt, Urban Agriculture Law Project, Community Law Center, “Adverse Possession,” September 14, 2012, available at http://communitylaw.org/urbanagriculturelawprojectadverse-possession/.
  2. If the squatter can show payment of taxes and a duly registered deed, only five years is needed.
  3. Similarly, in Louisiana, a community lived on and farmed a parcel of land together for over thirty years, and through “tacking” of adverse possession from one generation to the next, the requirements for adverse possession were met. See Morris v. Adams, 903 So.2d 638 (La. Ct. App. 2005).
  4. Courts vary, however, on the meaning of “claim of right”—either mere intent to take the land as one’s own is sufficient, or the squatter must believe s/he has rightful claim to the property, even if that belief is mistaken.