The Ag Law Roundup

By: Peggy Kirk Hall, Monday, June 06th, 2022

It’s time for another roundup of legal questions we’ve been receiving in the Agricultural & Resource Law Program.  Our sampling this month includes registering a business, starting a butchery, noxious weed liability in a farm lease situation, promoting local craft beer at a farmers market, herd share agreements, and agritourism’s exemption from zoning.  Read on to hear the answers to these questions from across the state.

I want to name my farm business but am not an LLC or corporation.  Do I have to register the name I want to use for the business?

Yes, if your business name won’t be your personal name and even if the business is not a formally organized entity such as an LLC.  You must register the business with the Ohio Secretary of State.  First, make sure the name you want to use is not already registered by another business.  Check the name availability using the Secretary of State’s business name search tool at https://businesssearch.ohiosos.gov/.  If the name is available, register the name with the Secretary of State using the form at https://www.sos.state.oh.us/businesses/filing-forms–fee-schedule/#name.  If there is already a business registered with the name you want to use, you might be able to register a similar name if your proposed name is “distinguishable” from the registered name. The Secretary of State reviews names to make sure they are not already registered and are distinguishable from similar names.  See the Guide to Name Availability page for examples of when names are or are not distinguishable from one another.

I am interested in starting a small butchery.  What resources and information are helpful for beginning this endeavor?

There are legal issues associated with beginning a meat processing operation, and there are also feasibility issues to first consider.  A good resource for initial considerations to make for starting a meat processing business is this toolkit from OSU at https://meatsci.osu.edu/programs/meat-processing-business-toolkit.   A similar resource that targets niche meat marketers is at https://www.nichemeatprocessing.org/get-started/.  On the legal side, requirements vary depending on whether you will only process meat as a custom operator or fully inspected operator, and if you also want to sell the meat through your own meat market.  The Ohio Department of Agriculture’s Division of Meat Inspection has licensing information for different types of processors here:  https://agri.ohio.gov/divisions/meat-inspection/home.  If you also want to have a retail meat market, you’ll need a retail food establishment (RFE) license from your local health department.  To help you with that process, it’s likely that your health department will have a food facility plan review resource like this one from the Putnam County Health Department.

Is Ohio’s noxious weeds law enforceable against the tenant operator of my farm, or just against me as the landowner?

Ohio’s noxious weed law states that the township trustees, upon receiving written information that noxious weeds are on land in their township, must notify the “owner, lessee, agent, or tenant having charge of the land.”  This language means that the trustees are to notify a tenant operator if the operator is the one who is in charge of the land where the noxious weeds exist.  The law then requires the notified party –which should be the tenant operator—to cut or destroy the noxious weeds within five days or show why there is no need to do so.  The concern with a rental situation like yours is that if the tenant does not destroy the weeds in five days, the law requires the township to hire someone to do so and assess the costs of removal as a lien on the land.  This puts you as the landowner at risk of financial responsibility for the lien and would require you to seek recourse against the tenant operator if you want to recover those costs.  Another option is to take care of removing the noxious weeds yourself, but that could possibly expose you to a claim of crop damages from the tenant operator.  A written farm lease can address this situation by clearing shifting the responsibility for noxious weeds in the crop to the tenant operator and stating how to deal with crop damages if the landowner must step in and destroy the noxious weeds.

Can we promote local craft beers at our farmers market?

Ohio established a new “F-11” permit in H.B. 674 last year.  The F-11 is a temporary permit that allows a qualifying non-profit organization to organize and conduct an event that introduces, showcases, or promotes Ohio craft beers that are sold at the event. There are restrictions on how long the event can last, how much beer can be sold, who can participate in the event, and requirements that food must also be sold at the event. The permit is $60 per day for up to 3 days.  Learn more about the permit on the Department of Commerce website at  https://com.ohio.gov/divisions-and-programs/liquor-control/new-permit-info/guides-and-resources/permit-class-types.

Can a goat herdsman legally provide goat milk through a herd share agreement program? 

Herd share agreements raise the raw milk controversy and whether it’s legal or safe to sell or consume raw milk.  Ohio statutory law does clearly prohibit the sales of raw milk to an “ultimate consumer” in ORC 971.04, on the basis that raw milk poses a food safety risk to consumers.  But the law does not prohibit animal owners from consuming raw milk from their own animals.  A herd share agreement sells ownership in an animal, rather than selling the raw milk from the animal.  Under the agreement, a person who pays the producer for a share of ownership in the animal may take their share of milk from the animal.  The Ohio Department of Agriculture challenged the use of herd share agreements as illegal in the 2006 case of Schitmeyer v. ODA, but the court did not uphold the ODA’s attempt to revoke the license of the dairy that was using herd share agreements.  As a result, it appears that the herd share agreement approach for raw milk sales is currently legally acceptable.  But many still claim that raw milk consumption is risky because the lack of pasteurization can allow harmful bacteria to exist in the milk.

Can the township prohibit me from having a farm animal petting zoo on my hay farm?

It depends whether you qualify for the “agritourism exemption” granted in Ohio law.  The agritourism exemption states that a county or township can’t use its zoning authority to prohibit “agritourism,” although it may have same zoning regulations that affect agritourism buildings, parking lots, and access to and from the property.  “Agritourism” is an agriculturally related entertainment, recreational, cultural, educational or historical activity that takes place on a working farm where a certain amount of commercial agricultural production is also taking place. If you have more than ten acres in commercial production, like growing and selling your alfalfa, or you have less than ten acres but averaged more than $2,500 in gross sales from your alfalfa, you qualify under the agritourism exemption and the township zoning authorities cannot prohibit you from having your petting zoo.  However, any zoning regulations the township has for ingress and egress on your property, buildings used primarily for your petting zoo, or necessary parking areas would apply to your petting zoo activity. If you don’t qualify as “agritourism,” the township zoning regulations could apply to the petting zoo activity, and you must determine whether a petting zoo is a permitted use according to your zoning district, which could depend upon whether or not you want to operate the petting zoo as a commercial business.

The Perils of Partition – The Forced Sale of Land (Part 1)

By Robert Moore, Attorney and Research Specialist, OSU Agricultural & Resource Law Program

One of the more common ways that farm families involuntarily lose farmland is through partition.  Under Ohio law, any person that is a co-tenant (co-owner) of real estate has partition rights.  Essentially, partition rights allow a co-tenant to force the other owners to buy them out or force the land to be sold.  Partition is a harsh, but arguably necessary, right of every co-tenant of real estate.  With proper planning, partition can be avoided.

Partition law is codified in Section 5307 of the Ohio Revised Code.  A partition is initiated by a co-tenant filing a petition for partition with the common pleas court.  A partition must be filed in the county in which the real estate is located.  Any co-tenant, even one owning a small percentage of the real estate, may file the partition.  The petition is very similar to filing a lawsuit and all co-tenants are served notice the petition.  All defendant co-tenants are provided an opportunity to respond to the petition.

After all co-tenants have been served and had an opportunity to respond to the petition, the court will appoint a commissioner.  The role of the commissioner is to essentially oversee the petition process on behalf of the court. The partition commissioner is permitted to physically divide the real estate if the property can be divided without the loss of value.  Due to the unique nature of farmland and the variation within each parcel, administrators rarely will physically divide the land.  Instead, the commissioner will usually decide to sell the land at auction and divide the sale proceeds among the owners. The first step in selling the land is to obtain the value of the land by appraisal.

After the value of the property is established, each party will be given an opportunity to buy the land at the appraised value.  If no party wishes to purchase, the land will be ordered sold by the court.  The land may be sold at sheriff’s sale but the parties usually agree to sell the land at public auction.  The one issue that the feuding co-tenants can usually agree upon is that they are likely to get a better price at an advertised auction rather than a sheriff’s sale.   The land must bring at least 2/3 of the appraisal price at auction.  After the land is sold, the proceeds are divided among the co-tenants in proportion to ownership.

The reason that partition law is a necessity is that Ohio law provides very little guidance to co-tenants as to how to manage their co-owned real estate.  For example, Ohio law implies that unanimous consent must be obtained in the management of real estate.  Therefore, one co-tenant holding a minority ownership percentage can prevent the land from being leased or sold.  Ohio law solves this issue by providing partition rights.  Basically, the law says that if the co-tenants cannot resolve their differences, then any one of them can force sale the land and divide the proceeds.  Partition is necessary because the law seeks to allow individuals to divest themselves of any asset they may own.  Without partition, a person could be forced to own real estate that they may not want to own and/or do not receive financial benefit.

Consider the following example.  Amy, Bob and Charlie inherit a farm from their parents.  Amy and Bob want to lease the land to a neighbor farmer but Charlie insists he is going to farm it.  Charlie has no experience farming and Amy and Bob know it will end up in a disaster if Charlie gets his wish.  Any potential tenant that Amy and Bob consider is contacted by Charlie and told the farm is not for lease.  Amy and Bob get frustrated and decide to file a partition because they are tired of dealing with Charlie and do not think they will get a fair, financial benefit from the farm if Charlie is the operator.  The court orders the farm sold and Amy, Bob and Charlie share the proceeds.

The risk of partition is not limited to just the initial family members who may own the land.  Any future owner also has the same partition rights.  Spouses, children and anyone else who may  become a co-tenant can force a partition.

Using the same scenario as above, assume Amy dies.  Her parents assumed that Amy’s share of the farm would go to her children (their grandchildren) but Amy never got around to doing and estate plan. So, under Ohio law, everything goes to her husband, Dale.  Dale has no attachment to the farm and just sees dollar signs now that he is a 1/3 owner of the farm.  Dale quickly files for partition and forces the sale of the land so that he can have money to buy the boat he has always wanted.

This example illustrates how easy it is for someone to become a co-tenant and gain partition rights.  Deaths, divorces, and poor business and estate planning can allow someone to become a unexpected and unwanted co-tenant.  Partition law does not care how long farmland has been in the family or how vital it is for a farming operation. Partition law treats a city lot that has been owned for a few months the same as a 1,000-acre farm that has been in the family five generations.  Partition can lead to harsh results that should be avoided if possible.

With proper planning, partition can be averted.  In the next installment, the various strategies to prevent partition will be discussed.

See the prior blog post “Ohio Case Illustrates the Risk of Leaving Farmland to Co-Owners” by Peggy Hall for a discussion of a Madison County case and the perils of partition.