I have a question regarding what happens after a lease has ended for growing plants on a portion of a lessors land. The tenant gives their notice to leave and has vacated owing 1 months rent, leaving both perennial and annual plants, and some pallets. What happens to the PERENNIAL plants that are left behind (say its in November and both annual re-seeds, spent annual crops (spinach, leafy greens), and perennial plants remain)? Does the lessor now own these plants or are they considered abandoned property? Or are both the annual and perennial plants considered emblements? How long can they keep coming back for?
I believe in a standard home rental they would be considered the lessors if they allowed the lessee to “improve” the property with plants (all plants annual and perennial are real property now that they are affixed to the land). But does it make a difference if the land was specifically being rented for the growth of plants? Does it matter if they are perennial or annual plants? What about the fact that the farmer skipped on a months rent?
So there are a lot of facts in your question that I need to break down. So you are basically talking about a ground lease, where only the ground is being leased in order to plant flowers. After the tenant vacates with 1 month left, the question is about the perennial plants that are left behind.
In a ground lease, the agreement would be very specific on the exact use of the ground. The plants would be spelled out and the agreement would address what happens to the plants in the event of a default. In a ground lease for agriculture, it’s presumable that the tenant can go back and dig out their perennials, but only because the lease so stated.
If the lease is silent on the issue, it’s going to be more likely that they are looked at as an improvement to the real property and the tenant will have given them up upon planting. In a Georgian case stemming back to 1902 (Wright v. Du Bignon) a lessee tried to take certain fixtures from the property he leased, including the flowers “which the lady members of his family had planted and had cared for.” The court ruled “All substantial additions made to the house also become a part of the free-hold, and are immovable, such as conservatories, greenhouses, hothouses, pig sties, stables, wash houses, and other outhouses. Neither can the tenant remove shrubbery or flowers planted by him in the garden.”
So, it doesn’t matter what type of flower it is or that the farmer skipped out on rent. If it’s planted, it becomes real property. If the lease doesn’t allow the tenant to sever it upon vacating, the flowers now stay with the property.
Even though that’s a Georgia case, it’s most likely the law of the land. I don’t see any reason why courts in other states would hold the other way on this.
Wow, thanks Brian! I didn’t expect such a detailed answer. Great to know! The history is interesting as well. So if I’m getting this right it sounds like all plants, if not determined in the ground lease would remain the real property with or without default. Does that mean that emblements are normally spelled out in ground leases and if not then the gardener ( lessee or seller of the property) is not able to come back and harvest if not spelled out after leaving?
Emblements are a different issue. Emblements are those crops that are planted in the year of the sale. Once the sale happens, the seller retains an easement to go back and harvest the crops. This is good only for the first harvest. After that, the crops are the property of the new owner.
Emblements are typically governed by contract. So, if the prior owner wanted to harvest a second a third year, the agreement would have to stipulate that.
And no, default doesn’t affect the fact that once planted, plants and crops become real property and cannot be severed unless the contract states otherwise.
OH! I think I see where I was confused now. Its the HARVESTING part that matters here. The property owner owns the roots of the “crops” (whatever is fixed to the ground, and remains after standard harvest), as part of real property but the farmer has the right to the fruits of their labor (queue drum and symbol sound) or the “fruits” of the crops they planted. Not only do I find this interesting but Utah is a state with a huge portion of Agricultural land. It may be a more specialize area of real estate, like Commercial, Industrial etc. but we do have a lot of people buying/ renting farm land. Thanks for helping me be informed!
Now I’m gonna through another one at you, could a renters right to emblements be used on a small scale like in a residential type setting?
Say you let your lessee plant a garden and they move but they left a bunch of planted spinach seed, strawberries, potatoes, oats or even maybe flowers like in your example (lavender- a flower but also a perennial herb). Can they come harvest? Or does the right to emblements HAVE to be written in the contract for it to take effect or are there other stipulations that apply? With everyone wanting to be a backyard gardener now a days I feel like it could come up.
Sorry, I know I have a bunch of questions on this but I haven’t been able to find a lot of information on the issue.
The emblement right would have to be stated in the agreement only to retrieve the harvest after the first year. The emblement doctrine allows the prior owner/tenant to re-enter the premises in the year of the sale to retrieve the crops, but it’s only for that first year. After that, they’d need something in writing for the second and third year.
And I misstated above. It’s not an easement, it’s a license that allows the prior tenant/owner to re-enter.
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