Minnesota Pollution Control Agency (MPCA) requires producers to have written agreements with landowners to apply manure under the site’s Nutrient Management Plan. While MPCA provides a one-page sample Land Application Agreement, this form does not deal with many common issues between producers and manure acres owners. One of the most significant issues is that these simple agreements are not binding on the new landowner if the manure acres change ownership.
Manure easements are a common alternative that binds the manure acres themselves to the agreement, even if the land is sold to someone else. These documents also more thoroughly describe the producer’s and landowner’s rights and responsibilities, which is especially important if the producer is dealing with a new owner of the manure acres.
The following are key terms that should be addressed in any manure easement:
- Correctly Identify Manure Acres and Owner. The manure easement must include a recordable legal description of the manure acres and the exact name of the person, trust or business entity that holds title to the property on the date the easement is signed and recorded. Do not rely on property tax statements or the owner’s memory. Review a copy of the owner’s deed, title insurance policy or Abstract to make sure the easement includes the correct legal description and property owners.
- Identify Facility Benefited by Easement. The manure easement must reference the legal description of the benefited property, meaning the property on which the hog facility is located.
- Right, Not Obligation, to Apply Manure. You never know when changes to production or other conditions at a particular site may change how much manure will be available. Rather, unless the parties specifically intend some other arrangement, the manure easement should state that the producer has a right to apply manure but not an obligation to do so.
- Term and Termination of Easement. Easements can be drafted to last forever, but manure easements generally have term limits. The producer does not want to commit to providing manure even when there is no longer a barn on the producer’s property. Landowners may also want a clear end-date for the manure easement, so the easement does not affect the title to the property forever.
- Application: Who, When and How. The manure easement should spell out which party is responsible for manure application (or for hiring the manure applicator), and who decides when the manure will be applied.
- Landowner Responsibilities. Even if the producer agrees to apply manure, the landowner needs to provide soil testing and fertilizer application information so the applicator can determine how much manure to apply.
- Indemnification. Usually, manure easements are drafted so the party that is responsible for manure application indemnifies (holds harmless) the other party from any liability with respect to improper field application. The easement should also include limits on indemnity obligations, such as the applicator not being liable for damages due to the landowner failing to provide the applicator pertinent information.
- Assignability. Manure easements typically “run with the land,” meaning that they continue in effect regardless of whether ownership of the hog facility or the manure acres changes hands. Manure easements should be written so that neither party has to obtain the other party’s consent to assign their rights and responsibilities under the easement to a successor-owner of the hog barns or the manure acres. Remember, even if the document includes assignment language, easements are usually only binding on successor landowners if they are recorded in the real property records.
- Air Quality Easements. Though not always included, manure easements often grant the producer an air quality or odor easement over the manure acres as well as the right to apply manure on the land. The easement has the effect of waiving the landowner’s rights to sue the producer for nuisance or other claims based on odors from the hog facility or manure. In Minnesota, an air quality easement may also include an agreement to change the property boundary location for measuring state ambient air quality standards. Note that laws on air quality easements and waiving livestock odor claims vary from state to state.
Action Item: If you use the MPCA’s sample form to secure manure acres, consider upgrading to a recordable manure easement to ensure you retain manure acres even if ownership changes hands. If you are already using manure easements, review your existing easements to make sure they cover all necessary terms.
This information is general in nature and should not be construed for tax or legal advice.