Agricultural and Natural Resources Law

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Agricultural and Natural Resources Law
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• Purpose Develop ability to solve legal
  problems

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• Identify and characterize the problem
• Detached and objective approach to the problem
• Awareness of legal materials

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Wisconsin Court System

• Trial Court
• Municipal court
• Circuit Court
• Courts of Appeal
• Supreme Court

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Federal Court System

• District Courts
• Jurisdiction 1. Federal quest.
• 2. Diversity
• B. Specialty courts
• C. Circuit Courts of Appeal
• D. Supreme Court

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Tort Outline

• Intentional torts
• Against the person
• i. Assault
• ii. Battery
• iii. Fraud
• iv. Libel and slander

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Tort Outline

• b. Against Property
• i. Trespass
• ii. Conversion
• c. Defenses
• i. Consent
• ii. Self defense

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Tort Outline

• ii. Self defense
• Must reasonably believe it is necessary
• Must retire to the wall

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Tort Outline

• Negligence
• a. Duty
• b. Failure to exercise
• reasonable care
• c. Proximate cause
• d. Damages

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Wisconsin Statutes 895.045

• Contributory negligence does not bar recovery if
• ?s negligence lt ?s negligence
• Damages reduced by ?s neg.
• Negligence gt 51 jointly and severally liable

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Example

• Neg. Damages Recovery
• A 60 1,000 0
• B 30 100 70
• C 10 10 9

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Tort Outline

• Strict liability
• a. Abnormally dangerous
• activities.
• b. Elements
• i. Proximate cause
• ii. Damages

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Tort Outline

• 4. Measuring damages
• a. Property
• FMV before - FMV after
• b. Personal injury

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Tort Outline

• Personal injury
• i. Medical expenses
• ii. Lost earnings
• iii. Pain and suffering

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Least Cost Avoider

• An economic theory that predicts the outcome of a
  tort case by looking at who was in a position to
  avoid the damage at the least cost.

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Nuisance

• That which annoys or disturbs one in possession
  of property, rendering its use or occupation
  physically uncomfortable to him or her.

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Duty to Users of Property

• Duty depends on the status of the user
• Trespasser
• Licensee
• Invitee

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Trespassers

• Civil Trespass
• a. Anyone on the property without permission
• b. Landowner must prove damages

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Trespassers

• Statutory trespass
• a. Lack of permission
• b. Notice
• i. Given personally
• ii. Posted

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Duty to trespassers

• Generally, no duty
• Landowner may use reasonable force
• Cannot maliciously try to harm

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Recreational Use Statute

• Common law higher duty to users with permission
• Statute same duty as to trespassers
• Protection applies only if not in business
  (lt2,000)

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Duty to trespassers

• Attractive nuisance
• a. Children likely to trespass
• b. Condition creates an unreasonable risk of
  serious injury
• c. Children dont realize danger

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Duty to trespassers

• 4. Attractive nuisance (cont)
• d. Utility of condition is slight
• e. Landowner fails to exercise reasonable care

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Tort Law Dogs

• Liability of owners for injuries caused by dog
• Liability of others for injuries to the dog

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Liability of owners

• Common law one bite rule
• Owner was not liable for injuries from the
  first bite but was liable for injuries from
  subsequent bites

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Liability of owners

• Wis. Stat. 174.02
• Liable for full damages from first bite
• Liable for twice the damages from subsequent
  bites
• Modified comparative negligence rules apply

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Wisconsin Fence Law

• Fencing in owners of livestock have a duty to
  use reasonable care to fence in their livestock
• Exception adjoining land owner cannot collect
  for damages caused by animal going through
  adjoining owners share of the fence

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Elements of a Contract

• Agreement
• Consideration
• Capacity
• Legality

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Statute of Frauds

• Title to real property
• Leases gt 1 year
• Contracts gt 1 year
• Goods gt 500 (other 5,000)
• Marriage
• Debt of another

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Exceptions to Statutes of Frauds

• Partial performance
• Estoppel

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Consequence of Breach

• Excused performance
• Impossibility
• Impracticability
• Frustration of purpose
• Remedies

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Remedies

• Damages
• a. Duty to mitigate
• b. Liquidated damages
• Specific performance
• Rescission and restitution

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Rights retained by government

• Right to tax land
• Right to take land for public use (eminent
  domain)
• Police power (zoning)

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Estates in land

• Fee simple absolute
• Life estate followed by
• remainder interest or
• reverter
• (Life estate per autre vie is measured by the
  life of another person.)

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Co-ownership

• Tenancy in common
• Joint tenancy
• Tenancy by the entirety
• Community property

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Wisconsin marital property law(community
property)

• Classified property
• Marital property
• Individual property
• Mixed property
• Unclassified property
• Deferred marital property

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Finding a Buyer

• Private Agreement
• Broker
• Open listing
• Exclusive-agency listing
• Exclusive-right-to-sell
• Multiple listing

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Real Estate Contracts

• Option to purchase
• the right, but not the obligation to purchase at
  a stated price.

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Offer to Purchase

• Buyers name
• Property description
• Purchase price
• Earnest money
• Items included
• Items excluded

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Offer to Purchase

• Property condition representations
• Zoning
• Time is of the essence clause
• Acceptance, delivery and related provisions
• Occupancy and related provisions
• Closing

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Offer to Purchase

• Closing prorations
• Special assessments
• Form of title evidence
• Conveyance of title
• Property condition provisions
• Property damage

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Offer to Purchase

• Fences
• Default
• Contingencies
• Financing
• Inspection
• Selling buyers property
• Signatures

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Common-law Adverse Possession

• Open
• Actual
• Notorious
• Adverse or hostile
• Continuous
• Exclusive under a claim of right

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Wisconsin Statutes 893.25

• 20-year statute
• Actual continued occupation
• Protected by substantial enclosure, or
• Usually cultivated or improved
• Under claim of title

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Wisconsin Statutes 893.26

• 10-year statute
• Same as 20-year statute and
• Title founded on a written instrument

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Wisconsin Statutes 893.27

• 7-year statute
• Same as 10-year statute and
• Paid taxes

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Eminent Domain

• Taking with compensation
• Two stages of process
• Show a public need
• Determine just compensation

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Zoning and land use controls

• An exercise of the governments police power
• No compensation for a decrease in the value of
  property

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Covenants running with the land

• Imposes use restrictions on owners of land
• Restrictions can be enforced by owners of land
  subject to the covenant

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Easements

• Easement of way
• dominant tenement
• servient tenement
• Easement in gross
• Utility easements
• Conservation easements

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Farm Tenancy

• Terms
• Lessor (landlord)
• Lessee (tenant)

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Writing requirement

• Statute of frauds
• Lease for more than a year must be in writing
• (exception partial performance)
• Wis. Constitution sets 15 year limit on
  agricultural leases

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Effect of being a merchant

• Firm offer (offer can be irrevocable without any
  consideration)
• Battle of the forms (new terms in acceptance can
  become part of the contract)

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Effect of being a merchant

• Statute of Frauds (confirmation of an oral
  agreement is sufficient in some cases)
• Implied Warranty of Merchantability

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Warranties

• Express
• Implied
• Implied warranty of merchantability
• Implied warranty of fitness for a particular
  purpose

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Defenses

• Privity of contract
• Disclaimer of warranties
• Obvious defects

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Security Interest

• Security agreement
• Lender must give something of value
• Borrower must have an interest in the property

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Security agreement

• Created by
• Writing
• a. Signed by debtor
• b. Describes property
• 2. Possession

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Perfection

• Possession
• Filing

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Rights in default

• Lender can repossess the property but cannot
  breach the peace

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Special provisions

• After acquired property clause
• Purchase money security interest

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Bankruptcy

• Chapter 7 liquidation
• Chapter 11 business reorg.
• Chapter 13 wage earners
• Chapter 12 farmers reorg.

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Agricultural Labor

• Employer-employee relationship
• Liability for acts of employees
• Liability for injuries to employees
• Employment legislation

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Workers compensation law

• If injury occurs in course of employment, worker
  is compensated regardless of negligence
• Compensation is set by statute

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Employment legislation

• Child labor laws
• Minimum wage laws
• Occupational Safety and Health
• Alien workers
• Unemployment compensation
• Social Security Taxes

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Partnership

• A partnership is an association of two or more
  persons to carry on a business for profit as
  co-owners and to share profits and losses.

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Partnership

• Distinguished from
• Joint venture
• Share lease
• Employment

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Partnership obligations

• All general partners are jointly and severally
  liable for all partnership debts.
• All partners are agents of the partnership.

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Marshalling of assets

• Partnership assets
• Partnership creditors
• Debts to partners other than as partners
• Partners capital accounts

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Limited partnerships

• Must be at least one general partner
• has unlimited liability
• Must be at least one limited partner
• has limited liability
• cannot participate in management

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Partnership taxation

• Partnership is not a tax paying entity
• Partners report their share of income or loss on
  their individual returns

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Partnership taxation

• Gain is not recognized on assets contributed to
  the partnership
• Gain is not recognized on assets distributed to
  partners

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Formation of Corporation

• File articles of incorporation with Department of
  Financial Institutions
• Issue shares of stock for assets contributed
• common shares
• preferred shares

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Corporations

• Shareholders
• Board of directors
• Officers

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Corporation taxation

• Corporation pays taxes on its income
• Shareholders pay tax on dividends
• Shareholders are treated as employees

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Corporation taxation

• Gain is not recognized on assets contributed to
  the corporation
• Gain is recognized on assets distributed to
  shareholders

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S election

• A corporation can elect to be taxed as a
  pass-through entity under subchapter S of the
  Internal Revenue Code
• Income or loss is taxed at shareholder level

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Limited Liability Companies

• Beginning in 1994, Wisconsin allowed the
  formation of LLCs
• They have become the entity of choice for many
  family owned businesses

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Advantages of LLCs

• Limited liability like a corporation
• Taxed like a partnership

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Limited Liability Companies

• Created by filing Articles of Organization with
  the Department of Financial Institutions
• Owners are called members

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Limited Liability Companies

• If two or more members, LLC is taxed as a
  partnership unless it elects to be taxed as a
  corporation
• If one member, taxed as sole proprietorship
  unless it elects to be taxed as a corporation

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Conversion to LLC from

• Sole proprietorship
• Partnership
• Limited partnership
• S corporation
• C corporation

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Estate Planning

• Objectives
• Financial security
• Equity
• Disposition of special assets
• Minimize probate costs and taxes

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Federal estate tax

• Year Exemption
• 2001 675,000
• 2002-2003 1,000,000
• 2004-2005 1,500,000
• 2006-2008 2,000,000
• 2009 3,500,000
• 2010 Unlimited
• 2011 1,000,000

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Federal estate tax

• Marital deduction unlimited
• Charitable deduction unlimited

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Federal gift tax

• Year Exemption
• 2001 675,000
• 2002 and after 1,000,000

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Federal gift tax

• Annual exclusion 12,000
• Marital deduction unlimited
• Charitable deduction unlimited

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Wisconsin Taxes on Property Transfers

• There is no Wisconsin gift or inheritance tax
• Wisconsin estate tax beginning 10/1/2002
• tax due on estates gt 675,000

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Basics of Planning for an individual

• Total estate under 675,000
• Total estate over 675,000

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Basics of Planning for a Married Couple

• Total estates under 675,000
• Total estates between 675,000 and 1,350,000
• Total estates over 1,350,000

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Income Tax

• Federal income tax is not imposed on transfers by
  gift or at death.

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Income Tax Basis

• Property transferred by gift has a carryover
  basis (unless basis is greater than fair market
  value)
• Property that passes through an estate has a
  date of death value basis (except gifts within
  one year of death)

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Example Farm

• Basis 100,000
• FMV 300,000

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Basis After DeathJoint Tenancy

• Wifes half 150,000
• Husbands half __50,000
• Total 200,000

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Marital property receives a basis equal to date
of death value of both halves.
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Basis After DeathMarital Property

• Wifes half 150,000
• Husbands half _150,000
• Total 300,000