The Rural Voice, 1998-03, Page 16DAVID E. GREIN
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12 THE RURAL VOICE
Agrilaw
Land leases — changing the deal
After land is leased and crops
planted, can a landlord impose new
obligations upon the tenant? Even if
the tenant agrees to such new
obligations, is such an agreement
legally enforceable?
In a recent case considered by the
Ontario Court
(General
Division), a
landlord
proposing to
sell topsoil,
before
permitting
harvest of a
horseradish
crop, insisted
that a tenant
agree to clean
the topsoil so
that the
horseradish is
"totally
extricated from the property ... to
create no further crop". When
"volunteer horseradish"
subsequently appeared, despite the
tenant's compliance with the
method specified in the agreement
for its elimination, the landlord sued
for the costs of cleaning the topsoil.
The Court held that the landlord
could not recover from the tenant
the costs of decontaminating the
topsoil where the tenant had
complied with the method of
eradication specified in the party's
agreement, even if the agreement
was enforceable. However, the
Court determined that, after having
agreed to the lease of the land to the
tenant for the horseradish crop, the
tenant's subsequent agreement in
order to proceed with harvest was
given under economic duress
without consideration and was,
accordingly, unenforceable.
With respect to the legal right of
the tenant to harvest the crop which
he had planted, the court stated:
"By the agreement, the (tenant)
promised to eradicate any
volunteer horseradish or to
undertake certain steps to do so
(depending upon interpretation).
He also paid a sum of money for
'Permission"
harvest
violated
tenant's
rights
the 'use' of the land in order to
fulfill this promise. What did he
receive in return? This was not
an agreement under seal. There
must be consideration for the
agreement to be a valid contract.
The only purported consideration
given by the plaintiff was the
`right' to remove the defendant's
crop. Does this constitute
consideration? I conclude it does
not... The plaintiff had no legal
right to prevent the defendant
from harvesting his standing crop
of horseradish. Therefore, the
plaintiff gave nothing to the
defendant which he did not
already have, his entitlement to
emblement. The plaintiff's
'willingness' or `permission' to
allow the defendant to harvest
cannot constitute consideration."
"Emblements" is "... the right of
a tenant to take and carry away, after
his tenancy has ended, such annual
products of the land as have resulted
from his care and labour". In
defining the tenant's rights, the
Court adopted the reasoning of an
earlier Ontario case that:
"The entitlement to emblements
arises when the tenant has sown a
crop, not knowing that his
tenancy would be terminated
before he has been able to
harvest that crop... To my mind,
however, it is not the uncertain or
certain nature of the term which
determines whether the right
arises, but the uncertainty of
termination as to what is known
or expected by the tenant at the
time he sows his crops ... If it
(the termination of tenancy)
occurred through no fault of his
own, and he has sown crops
before the unexpected
occurrence, he should be entitled
to his crops because, at the time
of sowing, he knew not at what
time the lessor would enter upon
him ... A lessee who at the time
of sowing can reasonably expect
to harvest the crop while he
remains a tenant, should be able
to do so, unless by his own act,
he causes the tenancy to