University of Maryland Extension

Types of property rights

Author: 
Nicole Cook, B.S., J.D., LL.M., Environmental and Agricultural, Faculty Legal Specialist, Agriculture Law Education Initiative (ALEI), University of Maryland Eastern Shore


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Ownership

Owning land gives the owner all rights to the property. The owner has the absolute power to enter the land and use it for any lawful purpose. The owner has the power to decide who else may enter the land, when they may enter and what they may do while they’re on the land. The owner also is the only one with the right to sell the property. Purchasing a property is the most secure way to ensure future rights to the land, and to allow for more substantial investment in the property.

Owning property, however, creates obligations. For example, the owner will need to provide liability insurance on the property (see “Insurance” below). The property owner will also have to pay property taxes for the property. If the farm is run by a not-for-profit organization and the use of the land is considered charitable, it may be able to apply for a property tax exemption from the state. Additionally, both for-profit and not-for-profit farms might be able to reduce their property tax if their state or municipality offers an urban agriculture property tax credit (see “Tax Incentives for Urban Agriculture” below).

How do I find who owns the property?

All land is either privately owned or owned by a government entity (e.g., the city, the state or the federal government). Once you’ve identified the land you want to use, whether it’s an empty lot, abandoned property or a neglected park, ownership of the property is a matter of public record. Usually your state’s department of assessment and taxation, or your county’s or city’s planning or zoning department, or your county’s registry of land deeds maintains records on every parcel of real estate within its jurisdiction. Usually the records are available online, although you might have to call or visit the appropriate office. They will, however, have the name of the property owner and the mailing address for the current owner.

For more information about how to locate the owner of a property, read Farmland Access in Urban Settings (Rosen et al. 2018). For land located in Maryland, watch the video How to Access a Farm’s Land Records on Maryland’s Agriculture Law Education Initiative’s website at www.umaglaw.org for step-by-step instructions on how to access land deeds.

Lease

A lease is a contract that allows certain individuals and/or organizations to use land for a particular purpose for the duration of the lease. Because it is a contract that involves real property, most states’ statute of frauds requires the lease to be in writing. It is important that the written lease includes specifics about how the leased property will be used. This will reduce the risk of claims

of breaching the lease contract, which could lead to terminating the lease.

The lease will also include the costs and duration of the lease as well as any renewal options. A lease gives the renter (the “lessee”) the right to use the land. A long-term lease is a relatively secure agreement because the landowner (the “lessor”) cannot change his or her mind about the agreement unless the renter doesn’t fulfill the terms of the contract or the duration of the lease term ends.

Some cities offer lease initiatives for urban growers to lease pre-approved plots. And some communities have created Community Land Trusts (CLTs) to assist urban farmers (Yuen 2019). A CLT buys property to be held for the benefit of others—in this case it would be for preserving open space and allowing urban agriculture projects. The CLT then leases the land to urban farmers. Each CLT establishes its own criteria for a property to be eligible for protection and for the farm to eligible to lease the property.

For more information about leases, lease initiatives and CLTs for urban farms, read Farmland Access in Urban Settings (Rosen et al. 2018).

Adverse possession

Adverse possession, otherwise known as “squatters rights,” is a legal principle under which a person (a trespasser) who is possessing a piece of property—usually land—that’s owned by someone else can be granted title to the property through a court action. This is only an option, however, in exceptional circumstances. The requirements have evolved over time and they vary between jurisdictions, but typically:

  1. The trespasser’s possession must be adverse (sometimes referred to as “hostile”) meaning that the true property owner did not give permission for the trespasser to be on the land;

  2. The trespasser’s use must be actual, meaning that the trespasser physically occupied the land;

  3. The trespasser’s use must be open and notorious, meaning that the trespasser’s occupation of the land was visible to passersby and known within the community; and

  4. The trespasser’s possession was exclusive, meaning the trespasser does not share control of the property with anyone else who isn’t in privity with him or her, and it must be continuous for the number of years required by the state’s statute of limitation. If all of the above conditions are met continuously for the required number of years, the trespasser can then file a court action to gain legal ownership of the property.

For questions about acquiring ownership of land through adverse possession, talk to an attorney.

License

A license is written permission to enter and use another person’s land. Licenses can be as general or specific as the parties choose. For example, a license can allow a particular community group to use the property for agricultural projects generally, or it can allow a group to enter onto the land only for the purpose of planting vegetables and exclude raising livestock. Licenses can be terminated at any time by the landowner, so this option is not as secure as a lease. It does, however, protect urban farmers from any claims of trespass, so long as they are operating within the limits of the license.

Easement

An easement allows for the use of land without owning it or developing it. Typically, an easement is a right of way. For example, urban farmers can arrange an easement with neighbors for permission to cross their yard to access an urban garden. Easements are often arranged if (1) there is no other way for urban farmers to access the garden plot or (2) if farmers have been crossing the neighbor’s property without conflict for so long that it is implied that they have permission to do so.

In some urban areas, conservation easements have been used to ensure long-term agricultural use of a parcel. Most often, the encumbered land (the land that is being used) was agricultural land before urban sprawl surrounded it. The easement “goes with the land.” That means that no matter who owns the land, the terms of the easement govern the use of the land. So, through a conservation easement, a farm is protected for agricultural use forever. For more information about conservation easements for urban farms read Farmland Access in Urban Settings (Rosen et al. 2018).

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