Agricultural Law

We specialise in providing legal services to the farming community and landowners. We provide clear and practical advice to members of the farming and agricultural sectors.

We have particular expertise in the area of agricultural law with Karen Walsh, Solicitor, hailing from a farming background and having a unique understanding of agricultural issues and the practicalities of day-to-day farming. She writes a weekly legal column for the Irish Examiner’s Farming Supplement.

Succession planning and farm transfers   

We have assisted many farming families with the transfer of the farm and business to the next generation. People are healthier and living longer now. Retirement brings big changes and lifestyle and income levels need to be planned for. It can be difficult to plan for the future. The advantages to doing so are obvious but one needs to be aware of the potential pitfalls and the consequences of decisions both from a tax and legal perspective.

Farming is a business and we have a strong understanding of farming and the farming way of life in Ireland.  Planning for the transfer of a farm in one’s lifetime or as part of a succession plan is one of our specialist areas. We know that any legal decision you make can have consequences for your farm. We understand farming and know what needs to be considered before making legal decisions.  Transferring the family farm is so much more than just a simple business transaction.We understand that when making any decisions with your farm it is important to consider the implications these may have on your business to include tax implications and compliance with EU Schemes and Regulations and the Department of Agriculture.

Another important consideration for farmers is the fact that a person’s income and assets are subject to a detailed examination to decide on the level of contribution which they must make towards nursing home costs.  For farmers, there is a five-year “look back” rule and assets including the farm which they have transferred in the five-year period before entering into a nursing home are included in the calculations. The only “safe” transfers are those where a clear five year period has elapsed between the time of the transfer and the first application for State support. This is a relatively new consideration for farmers when deciding whether to transfer land in their lifetime.

We know that any legal decision you make can have consequences for your farm. We understand farming and know what needs to be considered before making legal decisions.

Planning the transfer can be a difficult task for any parent whatever the circumstances.  Contact us today and we will guide you through the process.

Renewable Energy

The increasing issue of climate change, rising demand for cleaner energy and governmental initiatives toward renewable energy supply raises a number of legal and commercial issues for participants in this growing sector. One should never enter into such agreements without seeking independent legal advice.

If we had to give one single piece of advice to farmers and landowners that find themselves in this situation it would be to take your time, do not rush into signing anything and seek expert advice.

An Option Agreement is one of the most onerous documents you can sign. It allows the developer the option to acquire your lands and enter into a Lease if your lands are required by the developer in the future. If the developer requires the land, the developer is entitled to insist that you execute the Lease and you will have one or more wind turbines on your land for normally 25 to 35 years. When the option agreement is signed, you have also agreed the terms of the lease. The lease cannot be renegotiated later.

Both the Option Agreement and the Lease need to be examined closely. Do not sign any documentation however informal it looks before taking independent advice.

A windfarm turbine or turbines on your land should be treated as an alternative enterprise which will improve your quality of life and the income on your farm.  Seek advice from us as we are experienced in both the wind electricity business and the agricultural business.

Essentially, the Agreement is about striking the right balance between your rights and what the windfarm developer company needs in order to proceed. Farmer’s most valuable asset is their land and often the farm has been in the family for generations. Do not give a developer power over your most prized asset and livelihood. Before you put any pen to paper, take your time, do your research and seek expert advice.

We have advised farmers, landowners and agricultural businesses on a wide range of legal issues including the following:

  • Land access arrangements
  • Solar agreements
  • Wind farm construction & maintenance agreements
  • Commercial contracts & negotiations
  • Licensing
  • Supply agreements
  • Government & regulatory advice
  • Negotiating power purchase agreements

Property and Land Law

The purchase, sale or transfer of property and agricultural land can be an intricate and sometimes protracted process.

Our solicitors have comprehensive experience of property law with both private individual and commercial clients using our services across Ireland.  Our depth of understanding of property law enables us to carefully guide clients through the myriad of contractual, legal and regulatory requirements which must be adhered to when carrying out property or land transfers.

We work with farmers and landowners including first time buyers and resellers making sure that each client experiences a smooth, efficient and cost-sensitive service from beginning through to end.

Once instructed by our clients, we will carry out a range of conveyancing services including full title searches, preparation of legal documents and management of special property and land conditions, transaction fees and charges and related tax or stamp duty requirements.

If you wish to purchase farmland and have obtained loan approval, the bank will appoint their own solicitor to represent their interest in the transaction. You will need to appoint your own solicitor also.

Your title to the lands will need to be investigated.  It will be necessary to produce evidence that the buildings, if any, on your land, to be given as security, have planning permission and are in compliance with planning permission.

It will also be necessary to ensure that the maps to your lands are in order. Your family home will be excluded from the property being given as security.

If your family home is on the same folio as your farmlands, the family home will have to be marked by an engineer, to remove it from the title to the lands to be mortgaged, and placed on a separate title.

If you wish to gift, or sell, a site at a later stage, do not mortgage these lands, as you will not be able to gift, or sell, part of the land at a later stage without the bank’s written consent.

If you access your lands through a right-of-way over neighbours’ lands, a ‘deed of right of way’ must be put in place.

Alternatively, you may enjoy a wayleave to access water from a neighbour’s land, and a ‘deed of wayleave’ will need to be put in place also. In addition to the borrower entering into a ‘deed of charge’, it is common for a lender to insist upon a guarantee, by a third party, to be answerable for the default of another, and, in that instance, it is vitally important that the proposed guarantor obtains independent legal advice.

If a company is taking out the loan, the bank may also seek a guarantee by you, personally, for the default of the loan, and, in that instance, it is vitally important that independent legal advice be offered to the proposed guarantor.

In a partnership, a partner has no implied authority to bind the partnership in commercial borrowing, unless it is expressly stated in the partnership deed, so the lender will be anxious to get all partners to sign any guarantee.

While all of the above may seem a little overwhelming, it is important to seek legal advice as soon as you are granted loan approval, and we can advise you of what is required and guide you through the process.

Rights of Way

Many of us enjoy rights of way without ever really thinking about them, for example, you may access your house or farm through a neighbour’s private lane or roadway.

Often, a right of way would be used for a very long time, but would not be registered as a burden on the title or granted in a document.

It is worth noting that the Land and Conveyancing Law Reform Act 2009 put in place a timeframe under which unregistered rights of way and easements must be registered. Generally speaking, all rights of way and easement must be registered by the 30th November 2021.  However, there are exceptions and the facts and circumstances of each case would need to be examined closely. If you enjoy a right of way and wish to protect it, you should contact us as soon as possible before it is too late.

We have advised farmers, landowners and agricultural businesses on a wide range of legal issues including the following:

  • Adverse possession (Squatters Rights)
  • Transfers of sites
  • Voluntary transfers of farms
  • Commercial mortgages
  • Sale and purchase of property
  • Letting agreements
  • Commercial and private property conveyancing
  • Contract negotiations and planning
  • Leasehold and tenancy agreements
  • Mortgage, re-mortgaging and financing Terms
  • Property sale and asset disposal
  • Equity release and transfer
  • Compulsory purchases
  • Rights of way

Family Law

Family Law is a sensitive and extremely personal area. We have a proven track record of negotiating successful outcomes for farmers who are facing a divorce or separation.

We understand that you need prompt action in a reassuring environment and will treat your issues with the utmost delicacy and respect. We offer a sensitive and personalised approach while ensuring all possible outcomes and implications of any legal action are clearly understood by you before proceeding. We strive to achieve the best outcome for our clients and we do so with a friendly voice.

The first step you should take is to consult a solicitor who has knowledge of how a farm works and what is involved in the day to day running of a farm. Speak with us and we will help you weight up the advantages and disadvantages before you make any decision.

If you have exhausted counselling and mediation, and you find that your marriage has irretrievably broken down, the first step you should take is to consult us as soon as possible, as we have knowledge of how a farm works, and what is involved in the day-to-day running of a farm.

Do not make rash decisions. While your personal life might be in turmoil, a farming business needs attention, and the usual day-to-day decisions and work still needs to be attended to, and this is a time when both parties need to reach an early decision on daily practicalities.

Try to avoid court, where possible. Do your best to keep the relationship on amicable terms. It is better to negotiate a settlement outside the courtroom. It will reduce costs, and the parties involved will know a great deal more about the workings of their own farming business, and what a sustainable solution is, than a learned judge.

In order to ensure that the farm is kept intact, creative solutions are required to achieve a solution that both sides are satisfied with. We will negotiate on your behalf and try to resolve the matter out of court.

Divorce in Ireland does not take fault into account. Be practical. The role of the court is to divide assets, in order to provide financial support for spouses and children, and reach agreements in relation to custody. Explore the options. Dividing the farm is rarely an option, unless the holding is significant, and the smaller holding will rarely be viable to provide an income. Often, the income from the farm is the only source of income.

A divorce does not automatically mean that the spouse is entitled to half the farm; the court must ensure that proper provision is made for both parties and dependants.

It may be possible that the spouse takes a lump sum payment and/or the family home. It may be the case that the spouse receives a property located away from the family home.

Perhaps the spouse could be given non-farming assets, such as cash, pension funds, shares or an investment property.

In relation to the family home, it is often located on the farm, where the sheds and outhouses are also located. Having a former spouse living in the family home on the farm can lead to difficulties and resentment, especially if another partner moves in. This should be borne in mind.

Also, if a farmer lives too far away from the farm, he is not in a position to simply walk to the outhouse in the middle of the night to check on the cow that is due to calve.

Farmers may be asset rich and cash poor, and it is important to be realistic in relation to making periodic payments to spouses, or giving lump sums. A farm may also be heavily mortgaged.

Attention also has to be given to the seasonal nature of farming and the fact that EU subsidies form a significant portion of many farm incomes.

If you cannot resolve matters outside of court, we will represent your interest fully and endeavour to achieve the best result for you.

There is no magic formula or ‘one size fits all’ solution, but what is important is who you consult and how you approach it.  We care and we are here to help.

Pre-nuptial agreements  

A pre-nuptial agreement is essentially a formal agreement which can be drawn up for you and your partner. It sets out how you would divide your assets if you decide to divorce in the future.

The agreement can serve as a snap-shot inventory of assets and debts owned or incurred by each spouse prior to marriage, can convey interest in property between the parties, or dictate that neither spouse will acquire an interest in each other’s property.

If you already have wealth, property, savings or inheritance, a pre-nuptial agreement could help to provide an extra level of reassurance before entering into a new marriage. It may also be helpful if you have been married before, and want to ensure that any assets you have built up over the years are safeguarded for any existing children’s inheritance.

Any asset, no matter how big or small, can be included in your pre-nuptial agreement, so that could be savings, property, income or even pensions, all of which could be split if you get divorced. Only financial matters can be dealt with within the agreement. It cannot be used to make arrangements for any children.

Although there is no set formula for a pre-nuptial agreement, the kind of agreement used by most couples would be most straightforward, and state that the property owned by each party prior to marriage (or civil partnership) will remain theirs should the relationship end.

It would also set out how property acquired during the relationship should be treated. A statement that neither party should have a financial claim on the other, should the relationship end, is also common.

While a pre-nuptial agreement is not recognised under Irish law at present, this does not mean it is pointless getting one. Each case of course will depend on its own facts and circumstances.

In a divorce, if you have a properly drafted pre-nuptial agreement in place, the court will still more often than not take it into consideration, when deciding how your marital assets should be divided. There is every reason to expect that a properly drafted pre-nuptial agreement will one day give certainty to couples who want to arrange their own financial affairs. There is nothing stopping the court taking a well drafted pre-nuptial agreement into account in the event of a divorce.

A couple contemplating a pre-nuptial agreement should have a frank discussion about such an agreement, at least six months in advance of the anticipated wedding. Both parties can then put the matter behind them and focus on one of the happiest days of their lives.

It is critical that each party receives independent legal advice, to avoid either party claiming that they were misled, did not understand, or were not fully informed when signing.

The cost of getting a pre-nuptial agreement properly drafted by a solicitor can be relatively low compared to the benefits which could be gained following separation. Both parties will need their own solicitor.

We have advised farmers and landowners on a wide range of legal issues including the following:

  • Separation agreements
  • Judicial separation and divorce
  • Court proceedings
  • Pre-nuptial and co-habitation agreements
  • Access, custody and maintenance
  • Childcare law
  • Succession rights
  • Property and asset disputes

Wills and Probate

If we could give one single piece of advice to farmers it would be to make a Will or review their existing Will. It is vitally important for every farmer to have a valid Will made. Failure to make a Will can leave your family with an appalling mess to be resolved. This can be very expensive, cause family disputes and result in some land having to be sold, the farm becoming unviable and possibly being sold in its entirety.

When a person dies without making a Will the rules of intestacy apply governing who is entitled to receive a person’s property should they die.  Very often the application of the rules of intestacy results in the deceased person’s property being distributed in a manner that they would never have wanted. This is because the rules set out a list of people who are entitled to receive shares in the deceased’s property as well as the amount of these shares and the order in which they are entitled to receive them. For example, if you die leaving a spouse and children your spouse will inherit two-thirds of your estate and your children will inherit the remaining one third in equal shares. If you die a bachelor without parent or children your brothers and sisters will inherit your estate in equal shares. By making a Will you can choose who you wish to inherit your assets rather than this decision being made by the law.

As the law stands the Basic Payment Entitlements are attached to the farmer and not to the land.  If it is your wish to have the Basic Payment Entitlements go to a family member who is to inherit the farm, you should state this expressly in your Will.  Otherwise the Basic Payment Entitlements could end up in the residue of your Will and could pass to someone who has no involvement with the farm whatsoever.

It is also important to mention in your Will who you intend to benefit in relation to the Livestock, Bloodstock, Plant and Machinery.  If this is not mentioned specifically in the Will it may fall to the person or persons entitled to the residue of your estate.

Careful Will drafting can have a significant impact on the level of Inheritance Tax which will be paid.  It provides an opportunity to assess the position and consider what steps can be taken to minimise the inheritance tax liability.  The small cost of making a Will can represent excellent value when compared to the tax savings that can be made. Contact us today to arrange an appointment to make a Will. Do not put it off any longer. You will be glad you made the call.

Collaborative Farming

Farm Partnerships

Everybody knows that in all relationships, communication is essential. So, before you go into business, you need to enter into what is known as a farm partnership agreement, to protect yourself and your farming business.

In cases where there is no partnership agreement, or where the agreement is void, the partnership will be governed by the Partnership Act, 1890.

When a partner announces their intention to retire or leave, the first course of action should be to refer to the partnership agreement. A well drafted partnership agreement will also ensure that the other partners have a carefully structured plan to follow, if one partner becomes seriously ill or dies. It will secure everyone’s legal positions, and ensure the continuity of the farming business.

Inserting retirement provisions into a partnership agreement holds a balance between the interest of partners who leave and those who remain in the partnership. Clauses in relation to retirement need to be very carefully drafted.

The Partnership Act also states that partners are not entitled to interest on the capital they contributed to the farming business, unless the partnership agreement says so. A well drafted partnership agreement should cover the return of any capital invested, and any interest to be paid. You do not want a leaving partner demanding immediate withdrawal of all the capital they invested in the farm. The partnership agreement can specify time scales and terms.

A partnership agreement should also cover how to resolve disputes, and in what order, from mediation, arbitration or the expensive option of courts.

Partners without an agreement may be unaware that if one partner dies or is declared bankrupt, the partnership is automatically dissolved. In the case of a partner’s death, it could be that their estate receives a certain percentage, or a payment. If there is no legal agreement, the partnership has no obligation to pay the estate anything.

It is extremely important to put a written partnership agreement in place to avoid disputes and ambiguities in the future that could potentially threaten your farming business.

Contract Rearing of Heifers Agreements

Contract rearing of heifers is an arrangement which in simple terms involves a dairy farmer entering into a contractual agreement with another farmer, and the replacement stock are reared on the other farmer’s holding.

It is very important to have a written agreement in place. It provides a thinking platform, to explore possible scenarios and issues in advance of entering into an agreement. Potential problems can be addressed and ironed out before entering into an agreement. It outlines the responsibilities and expectations of both parties.

Whoever is at fault in a dispute, it is without doubt the farmer who will lose out the most in the long-term. The rearer who establishes a good reputation and is delivering a quality service will also need to protect his interest, by having a written agreement in place.

The success or failure of a contract heifer rearing enterprise can depend on the quality of the contract between the heifer rearer and the dairy farmer. Badly constructed contracts, incomplete contracts, or no contracts, often result in uncertainty, and ultimately a dispute between the parties.

 

Land leasing

Most farmers who need to enlarge their holdings cannot afford the enormous cost of purchasing land, and leasing land can be attractive. Alternatively, if you are retired from farming, or have recently inherited farmland and do not intend to farm it yourself, you may wish to let your lands.

Before you think about leasing land or entering into a lease, it is critical that a lease is drawn up in writing. To avail of the tax reliefs and exemptions, it is essential that the lease document is in writing. It is also beneficial in terms of finances, goodwill and the well-being of the land, to seek advice prior to entering into an agreement.

You should think about the possible use you may have for the land in the future, for example, you may wish to give a site to a child.

You may also be fearful of being locked into high or low land rents. This can be remedied by tailoring a lease agreement to include regular rent reviews, or by linking the rental charge to, for example, the annual price of milk or barley.

What is the tenant planning to use the lands for? This should be agreed. If cattle are to be put on the lands, the tenant should covenant that no diseased animal shall be placed on the lands.

The lease must specify that the tenant must carry his or her own insurance, and must indemnify the landlord from all claims or liabilities arising from the tenant’s user of the property.

If you are leasing the basic payment entitlements, this needs to be included in the lease, and a private contract clause also needs to be signed, to ensure that the basic payment entitlements revert to the landlord, once the lease comes to an end. It is critical that you consult with your Teagasc advisor, before putting any pen to paper.

It is also worth considering inserting a clause into the lease that, in the event of the tenant not receiving his or her basic payment entitlements, this should not affect the agreement in place, and that the monies are still due and owing to the landlord.

A clause should also be inserted into the lease that the tenant is to process and lodge all paperwork with the Department of Agriculture by the required deadline, for the purposes of triggering any entitlements payable, and to deal quickly with any queries that the Department may raise in connection with the application.

A tenant should not have a right to sublet the land without the landlord’s prior written consent.

The upkeep of the land should be covered in the lease. The manner and time in which notice of termination by either party must also be given is extremely important.

If considering leasing land, you need to consider other tax implications, such as the effect on potential capital gains tax in the event of a future disposal; this should be discussed with your advisor before entering into any lease.

A common fear among landowners is that of people claiming squatter’s rights over land. This is impossible if rent is being paid for the land on a regular basis. A lease protects the security of the land. A person cannot claim squatter’s rights on land that they are paying rent for.

The Landlord and Tenant Act 1994 provides tenants with a right to claim renewal of a lease at market value, where the property in lease consists predominately of buildings, where the land attached to buildings is considered to be “subsidiary and ancillary” to the building. For example, if the farm consists predominately of buildings such as cowsheds or slurry pits, the tenant would have a right to renewal of the lease at market value after a term of five years has elapsed. A way to get around this is by granting a lease of the land only and granting either a licence or a letting for the temporary convenience of the landowner for the buildings on the land.

In this circumstance, the tenant will not have a right of renewal after five years.

Having a detailed lease agreement in place is worth it in the long run, both from a financial and practical point of view.

Share Farming

Essentially, share farming is where two parties, the landowner and share farmer, can carry on a separate farming business on the same area of land, without forming a partnership or company.

It operates on the principle that the share farmer and owner, although farming the same land as individual businesses, have separate incomes and separate expenses to calculate their individual profits.

Share farming can be fully compliant with EU and government support schemes including Basic Payment Entitlements and REPS.

Unless careful legal advice is taken, a partnership or lease/ letting arrangement can unintentionally arise, in law. The form of the agreement is very important.

We have advised farmers and landowners on a wide range of legal issues including the following:

  • Cow leasing agreements
  • Share farming agreements
  • Farm Partnership agreements
  • Leasing agreements

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