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Agricultural and Natural Resources Law

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Wisconsin Statutes 895.045. Contributory negligence does not bar recovery if: ... Wisconsin Fence Law ... Beginning in 1994, Wisconsin allowed the formation of LLCs ... – PowerPoint PPT presentation

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Title: Agricultural and Natural Resources Law


1
Agricultural and Natural Resources Law
2
  • Purpose Develop ability to solve legal
    problems

3
  • Identify and characterize the problem
  • Detached and objective approach to the problem
  • Awareness of legal materials

4
Wisconsin Court System
  • Trial Court
  • Municipal court
  • Circuit Court
  • Courts of Appeal
  • Supreme Court

5
Federal Court System
  • District Courts
  • Jurisdiction 1. Federal quest.
  • 2. Diversity
  • B. Specialty courts
  • C. Circuit Courts of Appeal
  • D. Supreme Court

6
Tort Outline
  • Intentional torts
  • Against the person
  • i. Assault
  • ii. Battery
  • iii. Fraud
  • iv. Libel and slander

7
Tort Outline
  • b. Against Property
  • i. Trespass
  • ii. Conversion
  • c. Defenses
  • i. Consent
  • ii. Self defense

8
Tort Outline
  • ii. Self defense
  • Must reasonably believe it is necessary
  • Must retire to the wall

9
Tort Outline
  • Negligence
  • a. Duty
  • b. Failure to exercise
  • reasonable care
  • c. Proximate cause
  • d. Damages

10
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

11
Example
  • Neg. Damages Recovery
  • A 60 1,000 0
  • B 30 100 70
  • C 10 10 9

12
Tort Outline
  • Strict liability
  • a. Abnormally dangerous
  • activities.
  • b. Elements
  • i. Proximate cause
  • ii. Damages

13
Tort Outline
  • 4. Measuring damages
  • a. Property
  • FMV before - FMV after
  • b. Personal injury

14
Tort Outline
  • Personal injury
  • i. Medical expenses
  • ii. Lost earnings
  • iii. Pain and suffering

15
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.

16
Nuisance
  • That which annoys or disturbs one in possession
    of property, rendering its use or occupation
    physically uncomfortable to him or her.

17
Duty to Users of Property
  • Duty depends on the status of the user
  • Trespasser
  • Licensee
  • Invitee

18
Trespassers
  • Civil Trespass
  • a. Anyone on the property without permission
  • b. Landowner must prove damages

19
Trespassers
  • Statutory trespass
  • a. Lack of permission
  • b. Notice
  • i. Given personally
  • ii. Posted

20
Duty to trespassers
  • Generally, no duty
  • Landowner may use reasonable force
  • Cannot maliciously try to harm

21
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)

22
Duty to trespassers
  • Attractive nuisance
  • a. Children likely to trespass
  • b. Condition creates an unreasonable risk of
    serious injury
  • c. Children dont realize danger

23
Duty to trespassers
  • 4. Attractive nuisance (cont)
  • d. Utility of condition is slight
  • e. Landowner fails to exercise reasonable care

24
Tort Law Dogs
  • Liability of owners for injuries caused by dog
  • Liability of others for injuries to the dog

25
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

26
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

27
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

28
Elements of a Contract
  • Agreement
  • Consideration
  • Capacity
  • Legality

29
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

30
Exceptions to Statutes of Frauds
  • Partial performance
  • Estoppel

31
Consequence of Breach
  • Excused performance
  • Impossibility
  • Impracticability
  • Frustration of purpose
  • Remedies

32
Remedies
  • Damages
  • a. Duty to mitigate
  • b. Liquidated damages
  • Specific performance
  • Rescission and restitution

33
Rights retained by government
  • Right to tax land
  • Right to take land for public use (eminent
    domain)
  • Police power (zoning)

34
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.)

35
Co-ownership
  • Tenancy in common
  • Joint tenancy
  • Tenancy by the entirety
  • Community property

36
Wisconsin marital property law(community
property)
  • Classified property
  • Marital property
  • Individual property
  • Mixed property
  • Unclassified property
  • Deferred marital property

37
Finding a Buyer
  • Private Agreement
  • Broker
  • Open listing
  • Exclusive-agency listing
  • Exclusive-right-to-sell
  • Multiple listing

38
Real Estate Contracts
  • Option to purchase
  • the right, but not the obligation to purchase at
    a stated price.

39
Offer to Purchase
  • Buyers name
  • Property description
  • Purchase price
  • Earnest money
  • Items included
  • Items excluded

40
Offer to Purchase
  • Property condition representations
  • Zoning
  • Time is of the essence clause
  • Acceptance, delivery and related provisions
  • Occupancy and related provisions
  • Closing

41
Offer to Purchase
  • Closing prorations
  • Special assessments
  • Form of title evidence
  • Conveyance of title
  • Property condition provisions
  • Property damage

42
Offer to Purchase
  • Fences
  • Default
  • Contingencies
  • Financing
  • Inspection
  • Selling buyers property
  • Signatures

43
Common-law Adverse Possession
  • Open
  • Actual
  • Notorious
  • Adverse or hostile
  • Continuous
  • Exclusive under a claim of right

44
Wisconsin Statutes 893.25
  • 20-year statute
  • Actual continued occupation
  • Protected by substantial enclosure, or
  • Usually cultivated or improved
  • Under claim of title

45
Wisconsin Statutes 893.26
  • 10-year statute
  • Same as 20-year statute and
  • Title founded on a written instrument

46
Wisconsin Statutes 893.27
  • 7-year statute
  • Same as 10-year statute and
  • Paid taxes

47
Eminent Domain
  • Taking with compensation
  • Two stages of process
  • Show a public need
  • Determine just compensation

48
Zoning and land use controls
  • An exercise of the governments police power
  • No compensation for a decrease in the value of
    property

49
Covenants running with the land
  • Imposes use restrictions on owners of land
  • Restrictions can be enforced by owners of land
    subject to the covenant

50
Easements
  • Easement of way
  • dominant tenement
  • servient tenement
  • Easement in gross
  • Utility easements
  • Conservation easements

51
Farm Tenancy
  • Terms
  • Lessor (landlord)
  • Lessee (tenant)

52
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

53
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)

54
Effect of being a merchant
  • Statute of Frauds (confirmation of an oral
    agreement is sufficient in some cases)
  • Implied Warranty of Merchantability

55
Warranties
  • Express
  • Implied
  • Implied warranty of merchantability
  • Implied warranty of fitness for a particular
    purpose

56
Defenses
  • Privity of contract
  • Disclaimer of warranties
  • Obvious defects

57
Security Interest
  • Security agreement
  • Lender must give something of value
  • Borrower must have an interest in the property

58
Security agreement
  • Created by
  • Writing
  • a. Signed by debtor
  • b. Describes property
  • 2. Possession

59
Perfection
  • Possession
  • Filing

60
Rights in default
  • Lender can repossess the property but cannot
    breach the peace

61
Special provisions
  • After acquired property clause
  • Purchase money security interest

62
Bankruptcy
  • Chapter 7 liquidation
  • Chapter 11 business reorg.
  • Chapter 13 wage earners
  • Chapter 12 farmers reorg.

63
Agricultural Labor
  • Employer-employee relationship
  • Liability for acts of employees
  • Liability for injuries to employees
  • Employment legislation

64
Workers compensation law
  • If injury occurs in course of employment, worker
    is compensated regardless of negligence
  • Compensation is set by statute

65
Employment legislation
  • Child labor laws
  • Minimum wage laws
  • Occupational Safety and Health
  • Alien workers
  • Unemployment compensation
  • Social Security Taxes

66
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.

67
Partnership
  • Distinguished from
  • Joint venture
  • Share lease
  • Employment

68
Partnership obligations
  • All general partners are jointly and severally
    liable for all partnership debts.
  • All partners are agents of the partnership.

69
Marshalling of assets
  • Partnership assets
  • Partnership creditors
  • Debts to partners other than as partners
  • Partners capital accounts

70
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

71
Partnership taxation
  • Partnership is not a tax paying entity
  • Partners report their share of income or loss on
    their individual returns

72
Partnership taxation
  • Gain is not recognized on assets contributed to
    the partnership
  • Gain is not recognized on assets distributed to
    partners

73
Formation of Corporation
  • File articles of incorporation with Department of
    Financial Institutions
  • Issue shares of stock for assets contributed
  • common shares
  • preferred shares

74
Corporations
  • Shareholders
  • Board of directors
  • Officers

75
Corporation taxation
  • Corporation pays taxes on its income
  • Shareholders pay tax on dividends
  • Shareholders are treated as employees

76
Corporation taxation
  • Gain is not recognized on assets contributed to
    the corporation
  • Gain is recognized on assets distributed to
    shareholders

77
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

78
Limited Liability Companies
  • Beginning in 1994, Wisconsin allowed the
    formation of LLCs
  • They have become the entity of choice for many
    family owned businesses

79
Advantages of LLCs
  • Limited liability like a corporation
  • Taxed like a partnership

80
Limited Liability Companies
  • Created by filing Articles of Organization with
    the Department of Financial Institutions
  • Owners are called members

81
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

82
Conversion to LLC from
  • Sole proprietorship
  • Partnership
  • Limited partnership
  • S corporation
  • C corporation

83
Estate Planning
  • Objectives
  • Financial security
  • Equity
  • Disposition of special assets
  • Minimize probate costs and taxes

84
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

85
Federal estate tax
  • Marital deduction unlimited
  • Charitable deduction unlimited

86
Federal gift tax
  • Year Exemption
  • 2001 675,000
  • 2002 and after 1,000,000

87
Federal gift tax
  • Annual exclusion 12,000
  • Marital deduction unlimited
  • Charitable deduction unlimited

88
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

89
Basics of Planning for an individual
  • Total estate under 675,000
  • Total estate over 675,000

90
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

91
Income Tax
  • Federal income tax is not imposed on transfers by
    gift or at death.

92
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)

93
Example Farm
  • Basis 100,000
  • FMV 300,000

94
Basis After DeathJoint Tenancy
  • Wifes half 150,000
  • Husbands half __50,000
  • Total 200,000

95
Marital property receives a basis equal to date
of death value of both halves.
96
Basis After DeathMarital Property
  • Wifes half 150,000
  • Husbands half _150,000
  • Total 300,000
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