Escaping Private Property: A Long-Term Alternative to Farmland Ownership
BY ELIZABETH HENDERSON
In the US, the ideal for most farmers is to have their own farm and to hold it as private property. With farmland prices rising beyond what the sales of farm products can possibly cover and the financialization of farmland as a favored investment opportunity grasped eagerly by the likes of Bill Gates and TIAA, it is time to reexamine this ideal. Farmers of Color have led the way – from New Communities, the very first community land trust in the 1960s founded by Charles and Shirley Sherrod, to the recent formation of the Northeast Farmers of Color Land Trust (NEFOC). The whole concept of private property was foreign to Native peoples. US law, however, limits alternative ways of holding land. So let’s look at what is possible and start talking about the advantages and disadvantages of escaping private ownership of farmland.
For a farm to be sustainable, secure tenure is necessary. Building healthy topsoil, nurturing diverse annual and perennial plantings, developing a team that works well together and establishing reliable markets with supportive community relations all require long-term investments. Over the past twenty years in the US, a few organic farmers have sought alternatives – long-term, inheritable leases on land owned by non-profit land trusts or conservation easements held by land trusts. Under US law, these arrangements are as close as you can come to turning private property into community property. The farms function as private businesses, but the broader society has the opportunity to invest in the farmland, reducing the financial burden on farmers while guaranteeing the preservation of this essential resource.
The high cost of land in densely populated areas in the US has made it difficult for farmers to acquire adequate amounts of quality farmland. Many small-scale farmers lease land from non-farming owners who benefit from the reduced rate of taxation on land used for agriculture. Often these leases are short-term and when the owner decides to sell, the farmer is left with no choice but to leave. Partnering with Conservation and Community Land Trusts can make farmland affordable for the long term. Holding Ground: A Guide to Northeast Farmland Tenure and Stewardship documents some of these experiments and provides case studies, sample leases, and checklists. Land for Good, a not-for-profit based in New Hampshire, offers resources, advice and workshops on farmland access, tenure and transfer issues.
Private ownership of land is one of the most fiercely entrenched rights in the U.S. As Robert Swann, founder of the Schumacher Center for a New Economics and a leading voice in the Community Land Trust movement put it: “Built into the very core of the U.S. Constitution, written as it was by landowners, is the proposition (although not explicit) that property rights take precedence over human rights or ecological realities. The notion of ownership of land and national resources in private hands and for private profit was incorporated into the Constitution, thus perpetuating the myth of divine rights in ownership first promulgated by Roman law. Only the American Indians, the original inhabitants of this soil, dared to question the supposedly divine right of kings to bestow legal title to land. The Indians did not claim ownership, but rather they questioned the notion of ownership of land and resources which, in fact, had no place in Indian culture.
In the late 60s, Swann worked with civil rights activists Shirley and Charles Sherrod to establish New Communities in Georgia, modeled after Israeli kibbutzim. Founded as a collective farm, New Communities is widely recognized as the original model for community land trusts in the US. In The Courage to Hope: How I Stood Up to the Politics of Fear (Simon & Schuster, 2012), Shirley Sherrod tells the heart-wrenching story of how racist discrimination at USDA forced them to lose their land in 1985 and of their participation in the Pigford vs Glickman suit against USDA and the eventual settlement in 2009 that enabled them to buy a 1600 acre former slave plantation and start over by transforming it, in Shirley’s words, into “a place where we could both farm the land and also nurture the minds of people.”
The Schumacher Center for a New Economics and Equity Trust, two small non-profits, have been helping farmers acquire secure tenure without ownership. To make sense of their approach, one needs to understand that under US law land ownership amounts to a cluster of rights, any of which can be sold to someone else while keeping the others. For example, a farmer can sell the right to mine for gas on a farm and continue farming while a gas company sets up gas wells on the property. By placing a conservation easement on a farm, the farmer gives up the right to develop the land but can go on living there and farming. Non-profit land trusts or public entities such as towns and counties can legally hold conservation easements. There are two kinds of land trust in the US: conservation trusts and community land trusts. Typically, the conservation trusts raise funds to buy or accept gifts of conservation easements in order to preserve open land in perpetuity. The community land trusts buy or accept gifts of the land itself and then lease the properties to people to build houses or to farm, and highlight in their mission keeping the land affordable.
In 2004 when Rebecca Kraai, the owner of the 18 acres my partners and I were renting, offered to sell us the entire 140-acre farm (formerly the Humbert dairy), instead of going to the bank for a mortgage, we decided to contact our local land trust. At that time, we had a 5-year rolling lease with the Kraai family, a medium-term and moderately secure form of tenure. We renewed the lease every year, but the owners would have to give us 5 years’ notice to leave. With the chance of buying the land, we approached the Genesee Land Trust (GLT), a conservation trust, with a proposal that they accept a conservation easement on our farm, Peacework Farm. GLT’s Mission is to “preserve and protect waterways, wetlands, farmland, natural and unique habitat, scenic and recreational lands.” We hoped to replicate what the Decaters had done at Live Power Farm in CA.
In 1995, Chuck Matthei of Equity Trust guided Gloria and Steve Decater of Live Power Farm through a set of complex maneuvers. The Decaters purchased the land they had rented for many years at its value as farmland while the members of their CSA purchased the development rights and donated the conservation easement to Equity Trust. In consultation with Equity Trust, the Decaters wrote the conservation easement requiring themselves and all future farmers on that land to earn at least 50% of their living from farming it, to use organic or biodynamic methods, and put limitations on the resale price of the land to prevent market forces from driving the price above what a farmer could afford.
We thought we could ask the members of our CSA to finance the purchase of an easement so that we could buy the farmland at its agricultural value. We knew that farmland in our area was selling for $1000 to $1200 an acre and that the development value constituted about half the price. To our surprise, the land trust agreed to depart from its usual practices by purchasing the farm and leasing it back to us for a very long-term. In doing this, the GLT took the innovative step of functioning as a community land trust. Our farm business purchased the improvements on the land, a barn and packing shed, but not the land under them. To buy the land, the members of our CSA, together with the land trust, engaged in a fundraising campaign – “Preserving Peacework.”
The old Humbert dairy farm is a rich and beautiful place with 88 acres of tillable prime soils and 50 acres of woods and wetland areas with rare wildflowers. My partners Greg Palmer, Ammie Chickering and I did not want to finance our retirements by selling this farmland, as U.S. farmers so often are forced to do. We could have obtained a conventional mortgage to purchase the land as our own private property. But, by GLT owning the land, it would remain affordable for future farmers. We wanted to make our farm business solid enough financially that we could provide living wages, full benefits and retirement without selling the land. Without the financial burden of a mortgage, the total investment in the farm business would be smaller, allowing younger people to become full partners through sweat equity over a few years. With a lot of support from our CSA members, we were able to realize this vision for ourselves. Succession, however, did not work out as we had hoped, but the land is securely preserved under organic management.
Greg and I founded Peacework Organic Farm in 1998 on 15 of these rented acres. The 5-year rolling lease gave us reasonably secure tenure, but we were aware that, with or without the legal agreement, our remaining on the land depended on maintaining good relations with the owners. Greg and I, and starting in 2000, Greg’s wife Ammie, grew organic vegetables and herbs, most of which we provided to Peacework Organic CSA, a buying club in Rochester, New York (formerly named the Genesee Valley Organic CSA), in its 32nd year in 2021, and to Abundance Cooperative Market.
The Peacework CSA dates back to the winter of 1988-89 when I first moved to Rose Valley Farm in Wayne County. Alison Clarke, Politics of Food founder, recruited a retired Xerox engineer to brainstorm with my farm partner and me – we decided to ask everyone who purchased a share to participate in the farming and distribution and in setting CSA policy. This model worked well for over 20 years. In 1989, the CSA started with 31 shares for 29 households. Gradually, we expanded – 45, 90, 130. When Greg and I left Rose Valley in 1997, the CSA came with us and helped us find the Kraai land for our new farm.
With technical assistance from Equity Trust and Rochester lawyer George Parker, we negotiated a land lease with the GLT. The members of the land trust board shared our conviction that this land is worth preserving in perpetuity. Few of them, however, had any experience of organic farming and none of them had ever engaged in a deal of this kind. Some of them did not understand why a long-term lease was so important to us until we explained how long it takes to regenerate the soil and how heartbreaking it can be to do perennial plantings and then not see them mature. It also made sense to them that we could not afford to make the investments needed to upgrade the old barn unless we could be sure to use it for many years.
We had lengthy discussions of the appropriate lease fee. Under the terms of their non-profit status, they could not offer us a “sweetheart deal” on the rental fees we pay. They asked me to research what farmers were paying to rent an acre of land in our county. We were all surprised to learn that the going rate at that time, ranging from $35 to $50 an acre, just barely covered the land taxes. As a result, we agreed that the farm would pay the land taxes and all insurance and other local fees, but only pay a small administrative fee to the land trust.
Because the Kraai’s had sold the Humbert farmhouse and only kept the land, there are no houses on the property. I was fortunate to be able to purchase a house right next to the land; Ammie and Greg commuted 30 minutes from another town. We asked the GLT if we could set aside two small corners of the farm to build houses for farmers. At first, the board resisted: they did not like the idea of being landlords and pictured all the problems involved with owning rural housing. A letter from Leslie Reed-Evans, Director of the Williamstown Rural Foundation (WRLF), the land trust that entered into a similar arrangement with Caretaker Farm, persuaded them to see the matter differently: “The WRLF needs to preserve farms. A key to preserving farms is to make the land and the infrastructure affordable to farmers. The Caretaker Farm project gives the WRLF the opportunity to move beyond farmland preservation to farm preservation. This is an important distinction and critical to the survival of small family farms.” The GLT Board came to the realization that only by allowing the construction of homes for the farmers on the land and controlling the future sale price of those homes, could they assure that farmers will be able to afford to farm there.
To raise money to pay for the 140-acre farm, the core committee of Peacework Organic CSA set up a special “Preserving Peacework” committee to raise funds in coordination with the GLT. Including all of the ancillary expenses of land purchase – a survey of the property, a land stewardship fund to allow the land trust to monitor the land use on an annual basis, etc. – the fundraising goal was $150,000. Because the GLT is a non-profit organization, members of the public can make tax-deductible contributions towards the purchase price. Since CSA members had a special relationship with the farm, the fundraisers especially targeted them. After describing the purchase and lease work in progress, the Preserving Peacework committee made this special appeal to members: “So, what does this mean to us? It means our CSA is going to benefit by knowing that land ownership costs and the issues around buying and selling land are not going to be issues our CSA has to deal with, nor will the farmers need to worry about a landlord who decides to sell the land out from under them. In short, in addition to reaping the benefit of knowing that Peacework farm – “our farm” – will have a stable home farm, the CSA will also be a partner in the permanent preservation of high-quality organic soils, Ganargua Creek wetlands and floodplains, and hardwood forest land with important wildlife habitat and beautiful wildflowers.”
In only fourteen months, the Preserving Peacework committee raised the money to buy the farm; CSA members pledged $140,000. The very first contribution of $25,000 was anonymous and accompanied by this eloquent note:
“I believe that the planet is in a serious ‘people created’ ecological crisis motivated by greed and perpetuated by ignorance. The privilege and good fortune of eating clean local food is mine, due to the existence of the GVOCSA and Peacework Organic Farm. … My donation of $25,000 has caused raised eyebrows and not a few gasps. Conventional financial advice dictates ‘saving for a rainy day.’ Dear people, it is raining today, and it has been raining for a long, long time. It is rare that one has an opportunity to participate in such a fine cooperative venture. I do this with complete confidence in the ethics of the farmers, the GVOCSA and the GLT. I participate with joy and hope so that my great-grandchildren will have safe vegetables grown on a beautiful organic farm.”
The GLT completed the purchase of the land in January 2006 and in March of that year signed a twenty-five-year rolling lease with Peacework Farm. They investigated the possibility of a 99-year lease but decided against it out of concern that NYS would treat such a long lease as tantamount to private property. The requirement built into a rolling lease that it be signed by all parties every year turned out to be a good way to keep the land trust board in touch with the farmers. As board membership evolves over time, land trust arrangements that lack this provision have resulted in boards losing touch with farm realities.
While we are a long way from eliminating private property, organic CSA farms like Roxbury Farm in New York, Indian Line and Caretaker Farms in Massachusetts, and Good Humus Farm in California – all have long-term tenure on land that is leased and preserved. The transactions that led to these happy endings are complex, requiring the cooperation of multiple entities, savvy advisors, innovative land trusts and the social capital that the farmers earned by growing high-quality organic food. Together these farms offer a new model with the interrelated goals of preserving farmland from development while keeping it affordable for people who make their living as farmers. The money to buy these farms came from many small contributions from CSA members and other donors and establish these farms as community property, protected from the real estate market.
Resources: Robert Swann, “Land Trusts as Part of a Threefold Economic Strategy for Regional Integration,” centerforneweconomics.org
Northeast Farmers of Color Land Trust, nefoclandtrust.org
Alternatives to private ownership are complex to work out. I am always willing to share the documents involved, the lease, the list of rights and responsibilities, etc.: firstname.lastname@example.org