These sections are excerpted from a Lincoln Institute of Land Policy working paper. They describe the different methods for securing and protecting land tenure for urban food production, and end with a table comparing them.
In this chapter
Fee Simple Ownership
Fee simple ownership allows a CLT to hold the greatest number of “sticks” in the bundle of ownership rights and provides a high level of land security, as long as all mortgage payments and tax obligations are met. In urban areas, agriculture sites are often located on vacant lots, where ownership responsibilities may be contested and long-term security can be uncertain. In such circumstances, fee simple ownership is often considered the most durable way to insulate land from the speculative forces of real estate markets and secure property for community use.
Some CLTs choose to focus on acquiring land through fee simple ownership but decide not to develop in-house agricultural expertise for programmatic support or direct agricultural production. For example, in the early 1990s, the Durham Community Land Trustees in Durham, North Carolina purchased a property that included a small, non-conforming lot that the local neighborhood association advocated to become a community garden. Today, the Durham CLT continues to hold title to the community garden site, but the neighborhood association manages all programmatic and growing responsibilities, including paying utility fees.
A similar arrangement is seen at the Dudley Greenhouse in Roxbury, MA. Guided by community input, Dudley Neighbors, Incorporated (DNI) redeveloped the contaminated site of a former auto garage into a 10,000 square foot greenhouse that functions both as a commercial farm and a community growing space. DNI secured the land through fee simple ownership and leases the greenhouse for a nominal amount to a food-based nonprofit that handles agricultural programming and maintenance of the greenhouse structure. Harry Smith, Director of Sustainability and Economic Development at DNI, noted the benefits of this arrangement, “Growing food is a whole different thing, and we are not looking to take that role. This goes along with our belief that we should do the things we are good at, and do them well. And we shouldn’t do the things we are not good at.”
Urban agriculture sites can be expensive to acquire and hold in fee simple ownership. Some CLTs have reduced their costs by integrating urban agriculture into larger development projects. The Madison Area Community Land Trust utilized this strategy at the Troy Gardens project in Madison, Wisconsin. Troy Gardens incorporates diverse land uses on its 31-acre site. Five acres contain mixed-income cohousing, while 26 acres are set aside for a community garden, community-supported agriculture farm, and conservation areas. The Madison Area CLT structured the project so that the entire site (including the agricultural land) was eligible for federal HUD subsidy funding.5 Thus, by combining housing, agriculture and conservation goals, the Madison Area CLT was able to purchase a large tract of land in an expensive urban market and secure over 75% of the land for agricultural and conservation purposes.
Church Community Housing Corporation (CCHC) utilized a similar approach in developing Sandywoods Farms in Tiverton, Rhode Island. In 2004, the owner of a 174-acre low-intensity farm approached the Town of Tiverton with the vision of developing the site into a rural arts community. The town brought the project to CCHC, who agreed to develop the site to achieve the town’s comprehensive planning goals of preserving open space, maintaining rural character, creating affordable housing, and supporting the local arts community. Brigid Ryan, Senior Project Manager at CCHC noted, “We didn’t want to only do housing if housing is not [the] best use for the community in this location. So we took a broader view and said this is an opportunity. This is a huge parcel of land; what can we do with it?” Sandywoods Farms utilizes a clustered development approach, with 24 market-rate homeownership lots, along with 50 units of affordable homeownership and rental housing on 26 acres. Another 97 acres were transferred to a conservation land trust for ecological conservation. The remaining acreage went towards preserving farmland and creating a community garden, orchard, art galleries, and a commercial kitchen.
The Sawmill Community Land Trust in Albuquerque, New Mexico illustrates another example of an integrated development approach. In 1999, the Sawmill CLT won a development bid from the city of Albuquerque to plan and redevelop a 27-acre site, which includes affordable housing, economic development, and a forthcoming community garden. The Sawmill CLT’s ability to secure urban agriculture land through fee simple ownership was strengthened by government support for the comprehensive development project. In this case, the city has retained ownership of the future community garden parcel until the CLT is ready to develop.
While a CLT can use fee simple ownership to secure access to land, the continued use of the land for agricultural purposes is not guaranteed. Presuming that external restrictions on the use of the land are not imposed, a CLT can change the programming of fee simple land from urban agriculture to other uses, such as housing. In such situations, the CLT’s process for community- based decision-making is critical. Even where land is restricted to agricultural uses, such as through deed restrictions, secure tenure for the growers is not assured. The individual grower’s right to farm a plot year after year is not ensured through the CLT’s fee simple ownership of the land but depends on the informal and contractual relations between the CLT and the grower. Nevertheless, fee simple ownership can be an effective tenure arrangement for CLTs to secure land, but this arrangement may be impractical given the acquisition costs of urban land and the holding costs (depending on local property taxation). For these reasons, alternative tenure arrangements have also been used by CLTs seeking to secure land.
Ground Leases
Ground leases are a second tenure arrangement used by CLTs to secure land. A CLT can be the lessor or lessee under an agricultural ground lease. At times, the CLT can be the landowner, leasing land to an external entity to manage agricultural programming, as illustrated by the Madison Area CLT’s Troy Gardens project. Alternatively, the CLT can lease land from an external title-holding entity. The Southside Community Land Trust, for example, serves as both lessor and lessee on a 20-acre rural farm in Cranston, Rhode Island.
A ground lease can provide agricultural land security comparable to fee simple ownership, though it is dependent on the length and terms of the lease. For example, a 99-year lease with unclear performance standards can put the tenant at risk of arbitrary termination. Similarly, the lack of clarity can put the lessor at risk of being unable to retake the property if the land is taken out of agricultural use. As is the case with the National Community Land Trust Network Model Ground Lease for housing, longer-term agricultural leases are considerably more complex than short-term leases. These should include rigorous terms for standards of performance, conditions for renewal, lessor succession and assignment, and the setting of a lease fee that balances the interests of the lessor and tenant. Therefore, long-term ground leases can be challenging to draft and implement, particularly in the absence of a model CLT urban agricultural lease.
Deed Restrictions
Deed restrictions (also known as “deed covenants” or “restrictive covenants”) are a common tool for placing limitations on the uses of land and are frequently required by grant funders.7 Funders are motivated to monitor these restrictions in order to protect their investments, and funding recipients are motivated to comply with restrictions in order to avoid repaying grants or loans. Recipients also want to maintain good standing for future funding opportunities. For instance, the Madison Area CLT was required to grant a deed restriction to the City as a condition for funding the 26-acre conservancy parcel at Troy Gardens, restricting uses of the land solely for conservation and agriculture. Failure to abide by the terms of the deed restriction would trigger immediate repayment of all subsidy funds provided by the City of Madison.
While a deed restriction can be effective in ensuring that land is restricted to certain (in this case, agricultural) uses, it does not necessarily offer security of tenure for the grower or farmer. Further, the efficacy of deed restrictions is contingent upon their enforcement by the stewarding agent. Risks of noncompliance with restrictions are highest at the point of transfer of title, either due to inattentiveness by the title company or disregard by the buyer and seller.
Easements
Conservation easements are voluntary restrictions that permanently limit types of allowable uses on land. They are held by entities external to the titleholder. These agreements are frequently used as a tax-planning tool. A landowner grants an easement to a public or private nonprofit entity and commits to conserving land in exchange for a tax deduction commensurate with the diminution of property value. These arrangements can offer a similar level of land security as deed restrictions, and in some cases, can approach the security of fee simple ownership. While conservation easements are more common in rural settings, urban applications exist as well. In Baltimore, Maryland, a private landowner granted a conservation easement to Neighborspace (a land trust) on the site of an existing community garden in exchange for federal tax deductions. Arrangements such as these can also reduce the management burden on the titleholder, as the recipient of the easement often provides land stewardship services as part of the exchange.
Summary Table
| TENURE ARRANGEMENT | EXAMPLE ORGANIZATIONS | ADVANTAGES | DISADVANTAGES |
| Fee Simple | CCHC, DNI, Durham CLT, Madison Area CLT, Sawmill CLT, Southside CLT | long-term security | cost to acquire, property taxation, management obligations |
| Ground Lease | Athens Land Trust, Madison Area CLT, Southside CLT | low-cost, high level of control | legal complexity, transaction costs |
| Deed Restrictions | Madison Area CLT | low-cost, ensures agricultural use | enforceability |
| Easement | Madison Area CLT | low-cost, ensures agricultural use | transaction costs |