The Disclosure of Agricultural Activity Within A One Mile Radius Of Real Property Becomes a Law in California

AB2881 was signed into law by Governor Schwarzenegger making the disclosure of agricultural activity near real property to be sold in California legally required. Effective January 1, 2009, per Civil Code Section 1103.4, sellers and their agents (or a third party disclosure report provider) will be required to disclose to prospective buyers if the property is located within a one mile radius of defined farm land areas.

This new legal requirement is merely a logical step in California's quest to protect agriculture and those who engage in lawful agricultural activity in the State. The Right to Farm law was added to the Civil Code in 1981 by the enactment of AB585. Right to Farm laws, Civil Code Section 3482.5 et seq., provide that farming actives in California are exempt from "nuisance" lawsuits. Essentially, Right to Farm laws prevent farmers from being sued for engaging in lawful agricultural activity.

In the 2002 California Court of Appeals case of Rancho Viejo, L.L.C. vs. Tres Amigos Viejos, L.L.C., a residential developer sued an avocado farmer for failing to contain irrigation water that damaged the developer's land. The developer alleged that run-off from the avocado farmer's watering constituted "trespass". Although the Right to Farm law bars nuisance lawsuits against farmers in California, the developer/plaintiff focused his argument on the distinction between nuisance and trespass. The developer argued that: "while section 3482.5 may bar a claim for nuisance against a farmer for the odor produced by his cows, it will not shield him from liability if a cow were to escape and trespass onto a neighbor's property; thereby causing damage and or destruction of said neighbor's property." The developer could not avoid the California Court of Appeals' application of the Right to Farm law.

Right to Farm laws in California have significantly decreased lawsuits brought by individuals who have found that the long-established farm activities bordering their new back fences are offensive to their senses after they've moved into new housing developments in agricultural areas. The passage of AB2881 will no doubt significantly decrease the number of lawsuits even more since it is a proactive step in providing buyers with this material fact disclosure well before the close of escrow.

The protection of farmers and agricultural activity in the State of California is nothing new. In 1965, The Williamson Act (Land Conservation) was passed by the California Legislature to preserve agricultural lands. The Williamson Act authorizes property owners to voluntarily enter into a contract with the government to commit his/her land to agricultural activity, and in return, the landowner receives a substantial property tax break. These contracts run with the land and are binding on all successors in interest of the original landowner who entered into the contract. Failure to commit the land to agriculture, as promised in the contract, may find an unsuspecting buyer in breach of the contract with the government.

Property I.D. has been providing the site specific Williamson Act (Land Conservation) disclosure as a standard component in its reports for a decade. In addition, Property I.D. has been including and providing the "Right to Farm" disclosure as a standard component in its reports since October 2004. And now, this disclosure is required by law.