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Frequently Asked Questions: Do I Have the Right to Growing Crops When the Lease Terminates?

Updated: Jul 8, 2020

Tractor removing dead crops (Photo by Edwin Remsberg).

This post should not be construed as legal advice.

For those who have seen my leasing publication Agricultural Leasing in Maryland, you should realize I did not answer every question related to agricultural leasing. One of those questions is how to handle growing crops when a lease terminates.

What rights does the tenant have in the growing crop? This question may be answered in multiple ways depending on the type of crops being grown, language in the lease, and other factors. The best way to resolve this issue is simply to include in the lease language allowing a tenant a reasonable time to harvest growing crops after the lease terminates, or similar language allowing the tenant time to come back on the leased property to harvest growing crops after the lease has terminated.

If the lease does not handle this issue, then the doctrine of emblements will typically apply and allow for the tenant to reenter the property and harvest the crop within a reasonable time. To qualify for the doctrine of emblements, the tenant must lease the farmland for an uncertain duration, or by some act that is the landlord’s fault and without fault of the tenant. Do not worry; we are going to discuss each of these situations here.

Tractor on a field (Photo by Edwin Remsberg).

When the lease is for an uncertain term (both landlord and tenant are not sure of the end date), the tenant traditionally has the right to harvest the growing crop, absent an agreement to the contrary. In agriculture, we traditionally have had unwritten leases that contained no specific termination date; these type of leases would fall under this rule. The doctrine of emblements typically applies to annual crops, such as corn, soybeans, wheat, watermelons, etc. Many jurisdictions have found that perennials, such as apples, peaches, grasses, etc., have been found to not be included in the doctrine, although a Maryland court has not ruled on the distinction between perennial and annual crops.

The doctrine could apply when the termination is caused by landlord’s fault and not the tenant’s. For example, landlord terminates the lease because landlord has an offer to sale the property — this is a termination because of the landlord and the doctrine would potentially apply.

When the doctrine does apply, the tenant will have a reasonable time to harvest the crops. What is a reasonable time will depend on different factors, such as weather, conditions, opportunity to remove the crop, etc. This is typically a question for a jury to decide.

Dried crops in a field (Photo by Edwin Remsberg).

When a lease is for a term of years and the tenant knows the date the lease will expire, a tenant will not be able to harvest crops maturing after the lease expires (Am. Jur.2d Crops § 27, 2014). For example, Christie’s lease will terminate on December 31, and she plants a wheat crop to be harvested in June, 6 months after the lease has terminated. Because Christie knew the date the lease terminated, traditional rules will not allow her to harvest the wheat crop. But Christie should realize she may still have the right to harvest the crop: she may have retained a right to harvest growing crops in the lease, per local custom, or from assurances from the landlord that Christie would be able to harvest the crop after the termination date.

Maryland courts in a few cases have let tenants prove the right to growing crops by local custom. In Dorsey v. Eagle, tenant’s lease stated he was to farm it according to “manor regulations,” and tenant was allowed to prove that one regulation was allowing a reasonable time to harvest crops after the lease terminated.

In Dircks v. Brant, tenant’s lease was for 1 year with an option for another 3 years. Before the end of the first year, landlord sold the property and the 3 year option was not exercised. The Court of Appeals found that this was a lease for a certain period of time, the option was only a privilege which could be destroyed so the doctrine of emblements did not apply, and no local customs allowed tenant the right to harvest the crops.

Crops in a field (Photo by Edwin Remsberg).

More recently, the Court of Appeals found that language in a lease requiring the tenant to follow a certain crop rotation was not enough to demonstrate the tenant was entitled to harvest crops after the termination of a 3-year crop lease (Carmine v. Bowen). The court also found there was not enough evidence of local custom to allow the tenant the right to harvest the growing crops.

You may read this and think the safest way to protect yourself is to have a lease for an uncertain period of time. While that could be true, a simpler way is to include language in your lease allowing you a reasonable period of time to harvest the crop after the lease terminates. For example, your lease could include language such as “Upon termination, Tenant agrees to yield possession of the premises within ____ days of the date notice of termination reserving the right to re-enter the premises solely to harvest any crops that are the personal property of the Tenant and are growing at the time of termination.

The best way to protect you is always to have a written lease that addresses growing crops at termination. Handling this issue early on will make life easier and would not require to rely on a court to apply the doctrine of emblements.

We also have a short video overview of this issue available:

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