Gardening on Land You Don’t Own: Best Practices, Risks, and Tactics for Tenure and Ownership

 

The following toolkit provides a framework for those seeking land tenure (short-term possession) or land sovereignty (ownership) for urban agriculture projects.  The first section provides context for starting gardens on vacant lots—whether the lots are privately-owned or city-owned.  The second section explains risks for those gardening on vacant lots.  The final section details tactics for land tenure and ownership for existing or beginning gardens on either privately-owned or city-owned lots.

I.

Urban agriculture has gained attention in recent years.  In a city like Philadelphia with excessive vacant land—over 40,000 vacant and abandoned lots—converting this land, our commons, into gardens takes on increased significance.  With hundreds of acres of vacant land in thousands of parcels, gardening is a way to steward land, make neighborhoods safer, beautify blighted areas, and strengthen communities.

 

Gardens on vacant lots also increase food security by providing access to produce in places where fresh, healthy food is hard to come by.  But community-controlled gardens go a step further—they allow communities to be the heart of their own food systems, thereby increasing food sovereignty, or the right for communities to define and control their own food systems.   Similarly, the greatest benefits of gardening on vacant lots—environmental, health, social, and economic—often derive from community-driven gardening tactics, where those living in the neighborhood play an integral role. 

 

In a city like Philadelphia, with diverse neighborhoods and a strong and long history of community gardening, your initial questions to ensure longevity and community support when starting a garden on a vacant lot should include: Is this your community?  You may want to re-focus on organizing where you live, with your friends, neighbors, local businesses, and political officials.  If not, you should consider finding out:

  • which communities live in the immediate neighborhood and surrounding area where you wish to garden
  • which languages are spoken in the neighborhood and whether you or a fellow gardener has the language skills to do outreach, build relationships, and develop trust
  • which grassroots organizations have a presence and/or leadership in the neighborhood and see if you can learn more about their work or help out with any relevant issues, such as food, health, nutrition, and anti-hunger work.
  • if there is someone growing food in the neighborhood or nearby.  Perhaps you could support an existing garden, or share resources or information.

You should also meet and talk to neighbors and connect with people to build relationships and trust, and in turn, ensure that the garden benefits more than just the gardener, but is informed by community needs and wants.  This all depends on why and for whom you are gardening, but we hope you will consider all these issues as part of a larger urban agricultural framework in which you have an important role. 

 

II.

You have been gardening or are planning to garden on land that you do not have legal right to use, or “guerrilla gardening.” Gardeners may be liable if the actual property owner does not approve of the garden use of his/her property.  Potential punishments exist for guerilla gardening, but the City has not made a point of prosecuting gardening on vacant land, unlike other cities that routinely enforce these laws.  Therefore, gardening in Philadelphia on vacant land is currently a low risk activity. We do, however, want people to know what punishments could theoretically occur and what actions could incur worse punishment.

Here are some risks you should consider, followed by suggestions for reducing your liability. 

Guerrilla gardening is a trespass, or a wrongful interference with another’s property rights.  Pennsylvania categorizes different types of trespassing; potentially the most relevant is defiant trespasser 18 Pa. Cons. Stat. § 3503(b), summarized as:

If a person enters or remains on land without a license or privilege to do so, and where notice against trespass has been given by:

  •  Someone telling the person
  •  A sign or other posting that an intruder would notice, such as a “No Trespassing” sign
  •  Fencing or other enclosure meant to keep out intruders

This offense is a misdemeanor of the third degree if the offender ignores an order to leave that is personally communicated by the owner of the premises or another authorized person.  A misdemeanor of the third degree incurs the potential risk of a fine between $250 and $5,000 and/or imprisonment for no more than 90 days. If, however, the “intruder” receives no verbal warning the trespass is a summary offense punishable by no more than $200 and not longer than 90 days in jail. Variations do exist for trespass charges that carry different sentences, but as a general rule, if you are notified by an authority figure, the risk becomes greater.

See http://law.onecle.com/pennsylvania/crimes-and-offenses/00.035.003.000.html  for additional classifications of trespassing and subsequent punishments. Again, the city has not actively pursued prosecuting gardening on vacant land, but it may be useful to know the rules.

Whether city-owned or privately-owned property, gardeners may also be liable for:

  • Private nuisance, where the owner’s use and enjoyment of his/her property is interfered with as a result of the garden.  Courts have determined that odors and loud noises are private nuisances. 
  • Public nuisance, where a garden harms community resources, or threatens the public health, safety, or welfare.  In Philadelphia, public nuisances may occur where public rights are interfered with due to an activity that violates the Philadelphia Code, an ordinance, or any statute.  Courts have determined that excessive noise in violation of health and zoning regulations is a public nuisance.
  • Attractive nuisance, where property owners are liable for injuries to trespassing individuals, especially children who cannot understand a possible hazard.  Unsafe structures in a garden that harm trespassers would likely cause liability for the property owner.  It is unclear whether gardeners who do not own the property would be liable.
  • Negligence, where someone becomes injured as a result of your actions on a property.  Negligence is failure to behave with the level of care that is reasonable under the circumstances, particularly if there was a foreseeable likelihood that your conduct would result in harm.

Do any laws exist to protect farmers or gardeners against lawsuits? Pennsylvania has what is known as a "right-to-farm" law. This law makes it clear that the policy of the state is to support agriculture, and it protects farmers from certain kinds of liability. Specifically, it prohibits nuisance lawsuits against certain agriculture operations. It remains to be seen, however, how “right-to-farm” laws apply to urban agriculture, since the law is intended for larger operations that generate income. See http://www.nationalaglawcenter.org/assets/righttofarm/pennsylvania.pdf for more information.

How can you reduce liability?  The best way is to ensure community support, since liability is most likely to come from neighbors’ complaints.  By providing opportunities for the neighborhood to be involved with your garden, misunderstandings can be avoided, thwarting possible trespass or nuisance claims.  It is also important to reduce loud noises, bad odors, and hazards in your garden to reduce the risk of liability for nuisance or negligence. 

Securing tenure or ownership also reduces liability.  With this kind of security, you have no risk of liability for trespass, and nuisance risks decrease, so long as you are not bothering neighbors or the larger public. 

III.

While tenure or ownership are important aspects to garden and gardener security, local politics play a large role in whether gardens exist long-term.  Local politics refer to good relationships with your city councilperson, as well as good relationships with neighbors and the larger community where you’re gardening.  Making efforts to ensure community support and engagement, share your garden with others, and explain what you’re doing may be the most important pieces of securing your garden’s existence.  In fact, some of the longest standing gardens in Philadelphia are gardens where nearby communities are not only involved with the garden, but are central to its existence year after year. 

 

When considering which kinds of tactics you may use to secure tenure or ownership, it is important to first identify whether you are on city property or privately-owned land.  Different tactics will apply depending on who owns the land.  You can search for owners through the Office of Property Assessment: http://opa.phila.gov/opa.apps/Search/SearchForm.aspx?url=search , or 215-686-8686. 

 

After you have identified whether your lot is city-owned or privately-owned, you will want to consider whether you are more interested in pursuing land ownership or land tenure.  Land tenure is an ideal option to pursue if you are more interested in gardening only in the short-term.  However, if you are hoping to garden on a certain lot for many years, you may prefer ensuring your garden’s longevity through ownership.

 

At this time, Philadelphia is working to develop strategies for putting its excessive vacant land to use.  While these strategies are advancing, the Garden Justice Legal Initiative, advocates at various city agencies, and others suggest the following tactics:

 

For privately-owned, vacant land tenure:

  • (In)formal agreements with the property owner(s)

Agreements with property owners can be formal, such as a written contract, or informal, such as verbal permission.  The more formal the agreement, however, the more likely the terms will be kept.  You and the property owner(s) can develop an agreement specific to your situation.  For a sample agreement, see: http://ucanr.edu/sites/MarinMG/files/153657.pdf, or contact the Garden Justice Legal Initiative.

 

For privately-owned, vacant land ownership:

NOTE: these tactics are useful only when the lot is owned by either a deceased or absentee landowner.

  • Adverse Possession

Also called “squatter’s rights,” adverse possession enables ownership where an individual or group has gardened continuously for 21 years without concealing the garden, without permission from the owner, and to the exclusion of others.  Adverse possession can be a complicated process, requiring a lawyer.  While it is often less expensive than buying property, the process takes time and resources, and does not rid you of the burden of any debt or liens on the property after you gain title to it.  See the Garden Justice Legal Initiative’s Acquiring Privately-Owned, Vacant Lots for Gardening: Adverse Possession, for more information.

  • Sheriff’s Sale

Particularly if the property you wish to acquire is burdened with unpaid debt, sheriff’s sale is an ideal option for acquiring title without debts or liens attached.  Individuals can request that specific tax-delinquent properties be sent to sheriff’s sale.  For more information, see the Garden Justice Legal Initiative’s Acquiring Privately-Owned, Vacant Lots for Gardening: Sheriff’s Sales.

  • Conservatorships and Raising an Estate

Conservatorships apply only to lots with vacant structures.  They are authorized by Pennsylvania’s Abandoned and Blighted Property Conservatorship Act (also known as Act 135).  The process involves petitioning to take possession of a blighted property, financial commitment, and representation by an attorney.  Please see http://www.housingalliancepa.org/resources/102 for more information, or call 215-572-7300 ext. 111.  At the moment, conservatorships are not likely viable tactics for gardeners to gain title to property with a structure on it, since the process is resource-intensive.  Advocates are working, however, to change the law to make it a strategy for re-purposing vacant lots.  Raising an estate, which is completed through the Register of Wills, is a shorter process that can be used in situations where the owner of a property is deceased and no heirs have raised an estate.  This process involves having an attorney appointed as the administrator of the owner’s estate and a developer willing to purchase and rehabilitate the property. 

  • Eminent Domain

This term describes the power of government to take private property for public use, if the owner is compensated.  It is possible that Philadelphia may acquire certain tax-delinquent properties where the owner is deceased or absentee through eminent domain.  In this way, the City could return these lots to productive use, and gardeners or farmers could acquire property that would otherwise be expensive or time-consuming to obtain.

 

For city-owned, vacant land tenure

  • Interim-Use Agreements

These agreements allow a temporary use of property until a particular date or event, or until zoning regulations no longer permit the use.  They require that the use be in line with Philadelphia’s Zoning Code, so you need to ensure your garden or farm is in compliance with the Code.

  • Joint-Use Agreements

These formal agreements serve to define the terms and conditions for shared use of city land.  They are often agreements between two government entities.  Terms can be set by the gardeners and the city, but these agreements require a lot of effort and cooperation.  See: http://ourcommunityourkids.org/media/4477/14-DUG%20and%20DPS%20Agreement.pdf for an example agreement between Denver Urban Gardens and Denver Public Schools.

  • Leases

The City leases properties for urban agricultural activities defined as an urban garden, a community garden, or an urban farm. An urban garden is a non-commercial garden used by one household; a community garden is a non-commercial garden managed by a nonprofit; and an urban farm is a commercial garden that has a goal of earning a profit.  Leases with Philadelphia last between three and five years and require purchasing liability insurance, which could cost over $650 per year.  Advocates are working to develop policies that would provide affordable insurance for urban gardens and farms. Contact the Philadelphia Redevelopment Authority at 215-854-6500 for more information on leases.

  • Licenses

Licenses give individuals or organizations permission to garden or  farm.  However, licenses can be suspended or revoked at any time. anything else?

  • Zoning Amendments/Ordinances

Amending the Zoning Code or crafting ordinances to enable certain land use policies for gardens is a possible solution to the abundant vacant land in Philadelphia.  For example, if the process for leasing land were made simpler and cheaper, land tenure could be furthered.  If land were available for gardeners for a nominal fee, land ownership would be promoted.

 

For city-owned, vacant land ownership

  • Land Conversion

Converting land from vacant status—an unproductive use, into agricultural land?

  • Land Bank

Land banks allow municipalities to assemble public property for economic development.  With urban agriculture as an economic development tactic, Philadelphia could use banked land for gardens or farms. ownership or tenure? or “commons”!

  • Land Trust

In Philadelphia, the Neighborhood Gardens Association (NGA) helps preserve community-managed gardens.  Land trusts operate by conserving land by acquiring it for permanent stewardship, such as through gardening or farming the land.  While a land trust would be the ultimate owner of a gardened lot, if your garden were adopted by the NGA, you would be assured its existence as a garden.

  • Nonprofit Ownership

Purchasing land as a nonprofit is an option for lots gardened by a community group.  The benefit to being a recognized nonprofit organization is the ability to apply for property tax exemption.  This process will likely require a lawyer, but if successful, allows an organization to focus on gardening, and not put funds toward paying property taxes.

  • Side yard Purchase

If your garden is adjacent to your property, under 3,000 square feet, and valued under $15,000, you may be able to purchase it for a nominal fee as a “side yard.”  In addition, you must own your property as your primary residence, and live on a block that is predominately occupied.  The first step in this process is to file an “Expression of Interest” (EOI) form online, which effectively gives you first “dibs” on the lot.  See http://secure.phila.gov/paplpublicweb/ to file an EOI.  For more information on side yard purchases, see http://www.phila.gov/pra/buyingproperty.html#three, or contact the Philadelphia Redevelopment Authority at 1234 Market St., 16th floor, 215-854-6500.