Gardening on Land You Don’t Own: What you need to know about best practices, risks and tactics
You don’t need to own vacant land to establish a community garden or green space in Philadelphia, but gardening without ownership comes with risks. Find out how to get started.
The following guide provides a framework for those seeking short-term possession (land tenure) or ownership (land sovereignty) for urban agriculture projects.
The first section provides tips 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 that they do not own. The final section details tactics for land tenure and ownership for existing or beginning gardens on either privately-owned or city-owned lots.
HOW TO START GARDENING ON VACANT LAND
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 common space, 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 disinvested 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, ensuring community support and longevity is vital when starting a garden on vacant land. To make sure this happens, ask yourself this before starting a garden: Is this your community? If possible, focus on organizing where you live, with your friends, neighbors, local businesses, and political officials. Consider finding out:
- which groups of people 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; 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. Check out the directory of established gardens to get started.
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.
GARDENING ON VACANT LAND YOU DO NOT OWN: RISKS AND BEST PRACTICES
You have been gardening or are planning to garden on land that you do not have legal ownership of or permission 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 that for guerilla gardening 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–if the warning is only a sign or fence–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 https://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.
Other Legal Risks
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.
WHAT IF I GET SUED? LIABILITY AND COMMUNITY GARDENING
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 this factsheet from Penn State 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.
SECURING OWNERSHIP OR TENURE OF YOUR GARDEN
While tenure or ownership are important aspects to garden and gardener security, local politics and relationships play a large role in whether gardens exist long-term.
Establishing a good relationship with your city councilperson, as well as good relationships with neighbors and the larger community where you’re gardening, is an important step to securing your garden for the long term. Making efforts to ensure community support and engagement, sharing your garden with others, and explaining what you’re doing may be the most important actions you can take to secure your garden’s existence. In fact, some of the longest standing gardens in Philadelphia are gardens where nearby communities are not just 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. Find out using this tool.
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.
Tactics for Gaining Ownership or Tenure on Your Land
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 more information, see making an agreement with a private owner.
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. See our guide to adverse possession.
- 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 our guide to 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. For more information, see our guide to conservatorships.
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: https://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 property, please see this resource about gardening on public land.
This information is accurate as of 2013 when Grounded in Philly was first launched; however, some information may have changed since then. Although The Public Interest Law Center works to make sure the information on the website is accurate and up to date, and has fixed inaccuracies that have come to our attention, we make no claim as to the accuracy of all of this information. We recommend that you consult with a licensed attorney if you want assurance that the information on the website and your interpretation of it are appropriate for your particular situation. We are continuing to improve Grounded in Philly’s accuracy and usefulness.
If you see something on this page that appears to be inaccurate, please contact Jonathan McJunkin.