1. We recently had a disagreement with a local farmer who damaged a field he was leasing from us by leaving cattle out on it all winter. He says he doesn’t have to reseed it because it is not mentioned in the lease? Could this be true? While the field has greened up again, it is not growing nearly the same volume of grass but that does not seem to bother the farmer leasing the field. There is one year of a seven-year lease left.

I would advise you to check a copy of your lease to see if a prohibition on out-wintering was included as a special condition. If it was and he did not comply with that provision, he can be said to be in breach of the lease. If it wasn’t included specifically, it might be covered in another clause.

For example, the IFA master lease contains a general provision that the farmer must manage, cultivate and use the farm at all times in accordance with the rules of good farming practice until the lease terminates. Further, he is obliged at all times during the term of the lease to comply with the Good Agricultural and Environmental Conditions (GAEC) and all cross-compliance regulations and statutory management requirements. It is questionable whether the winter grazing breached either of these obligations.

In any event, he is obliged to give back the farm at the end of the lease in the same condition as when he got it. Ideally, you should have taken photographs and soil samples at the start of the lease so that you can compare them with photographs and samples taken at the end of the lease in proving whether the condition of the farm has deteriorated. If you didn’t take photographs and soil samples, I suggest that you agree to do that now and do it with the farmer present so he does not claim later that you took photographs and samples from the best bits of the farm. It should be representative of the entire farm being leased.

2. What rights have I as a farmer if I find a Department of Agriculture inspector disrespectful or if I feel intimidated or bullied during the course of an inspection on my farm holding?

The Farmers’ Charter of Rights 2015-2020 details general principles in relation to on-farm inspections. It provides for a ‘‘cooling-off’’ period in the event of a disagreement arising during the course of an inspection. This allows both parties to reflect on their position. If, after this period, the farmer still refuses to allow the inspection to go ahead, the inspecting officer will report the matter and circumstances to his/her supervisor. If the inspection does not go ahead on the day without good reason (eg serious illness or bereavement), then the payment may be stopped.

Even if you feel intimidated or bullied during the course of the inspection, you should allow the inspection to be carried out where possible.

Every on-the-spot (ground) inspection will be the subject of a report and the farmer or his/her representative will be given an opportunity to sign the report and to include observations. You could include your concerns about the manner of the inspection in this report. Signing this document does not imply that you accept the inspection findings.

Thereafter, you could make a complaint to the Quality Service Unit of the Department of Agriculture. There are three steps if you wish to make a complaint:

  • Contact the manager of the division concerned. If, for example, the complaint is in relation to an inspection, contact the head of the inspection unit for your area, who will then look into how the inspector acted.
  • You can write directly to the Quality Service Unit. The Quality Service Unit can be contacted at 057-869 4331 and by email: Quality ServiceUnit@agriculture.gov.ie.
  • If you are dissatisfied following steps one and two, you can contact the office of the ombudsman.
  • Complaints must be made by letter or email: ombudsman@ombudsman.gov.ie

    Office of the Ombudsman,

    18 Lower Leeson Street,

    Dublin 2.

    If you are making a complaint, include as much information and detail as possible including the date and name of person involved in the incident, your name, address, contact details and herd number.

    3. Is it true that if I don’t mention and assign entitlements in my will that they will be split among all those mentioned in my will?

    There has been a change in the law recently in relation to entitlements not mentioned in a will. Your entitlements will not be split among all those in your will.

    Where the date of death is after 21 November 2017, and if the will does not state to whom the entitlements should be left, the entitlements will transfer with the land, unless there is a legal impediment preventing the transfer. In cases where there is more than one beneficiary of the land and the entitlements were not mentioned in the will, the entitlements will transfer on a pro-rata basis to whomever was left the land. For example, if the land is divided equally between two beneficiaries, the entitlements will also be divided equally between the two beneficiaries.

    The new law does not affect the situation where a person has been named as the beneficiary of entitlements in a will – the entitlements will transfer to the person named to get the entitlements under the will.

    Before the new law came into force (ie for deaths before 21 November 2017), the old rule that applied was that entitlements generally fell into the residue. Most wills provide for a residue clause, ie who is to get the property that has not been specifically mentioned in a will. Often, the residue is left to the non-farming children. This is why it is so important to state in the will that the entitlements are to be left to the person inheriting the farm. If there is no residue clause, the entitlements are divided up according to the rules of intestacy. Typically, this means where a person dies leaving a spouse and no children, the spouse inherits the entire estate. Where a person dies leaving a spouse and children, the surviving spouse is entitled to two-thirds of the estate and the children one-third between them.

    4. Our vet recently came to treat a sick cow but he slipped on the way into the holding pen where the cow was in the head crush. He injured his leg and has back pain as a result since this accident? Where does the responsibility or liability rest?

    The Health and Safety Authority (HSA) has an information sheet regarding the health and safety of vets visiting farms.

    According to the HSA, the employer has a legal duty to have a safety statement.

    For a veterinary practice or self-employed vet, this should include risk assessments covering the risks to the veterinary surgeon or other employees involved in handling animals on the farm.

    While the farmer should provide a safe place of work, there is a legal obligation on vets to ensure the work can be carried out safely.

    Vets must report any accident which causes their absence from work for more than three days to the HSA.

    The courts generally look for evidence and proof that reasonable care was taken to prevent animals straying on to the public road

    Where handling facilities or conditions are inadequate and potentially dangerous, the vet should raise their concerns with the farmer. If an adequate degree of safety cannot be provided, the work should not continue until some remedy is put in place. Where vets have encountered circumstances where they have been at risk of serious injury and no remedy is foreseeable, they can report such a matter to the HSA.

    It is usual that a vet will have their own insurance in the event of being injured.

    It is recommended that every farmer has both public liability and employer’s liability. Public liability insurance covers legal liability for injury, disease or property damage caused to a member of the public arising from your farming activities.

    Employer’s liability cover provides protection against legal liability for injury or disease caused to employees of the farmer in the course of their farming duties.

    It could be the case that the vet could be held responsible for the injury or the farmer, or indeed both of them depending on the level of culpability.

    It is advisable that all landowners have public liability insurance.

    5. I have a farm leased five miles from my home farm. If my cattle break out on the road there and one is involved in an accident with a car, who is liable?

    Written leases usually make reference as to who is responsible for the upkeep of fencing: the owner of the land or the person leasing the land.

    A lease will also usually state whose responsibility it is to take out insurance. In general, both the maintenance of fencing and the requirement of insuring the property are the responsibility of you as the lessee.

    In relation to determining who is liable in the event of an accident caused by animals straying on the road, the courts generally look for evidence and proof that reasonable care was taken to prevent animals straying on to the public road.

    It is advisable that all landowners have public liability insurance

    Examples of reasonable care include ensuring that the land is properly fenced, that the fence is in a well-maintained condition and stock proof, that there is electric shock and securely locked gates (if necessary). It is also important to have regard to the type of animal and the temperament of such animal in deciding whether you have taken the necessary precautions, eg a bull would require a more secure system of fencing to be considered reasonable than a quieter animal.

    It is important to note that farmers are not held to be strictly liable in the event of an animal straying – they can defend a claim if they can show that they took reasonable care to prevent the animals from straying.

    It is advisable to have public liability insurance and to tell your insurer about the rented land to ensure it is included in your cover.

    6. As an executor of a will, what are my responsibilities?

    An executor is the person or people appointed by the deceased in their will to administer the will of the deceased. The executor has a choice to take on the role so you should check that they are happy to do it before you appoint them.

    The responsibilities of an executor include:

  • To preserve the assets of the deceased until they are distributed and to protect the assets from devaluation.

    For example, you should make sure that all assets are properly insured.

  • Call in any outstanding funds due (money owing to the deceased).
  • Pay the expenses and debts of the estate: an executor is legally responsible for sorting out the finances of the person who died, generally making sure debts and taxes are paid.
  • Notify banks, credit card companies and Government agencies of the deceased’s death. If the deceased was receiving a social assistance payment, you must inform the Minister for Social Protection of the death before distributing the estate.
  • Make sure that the spouse (or civil partner) knows about their legal right share.
  • Make sure the entitled beneficiaries or next of kin get what they are entitled to, and that ownership of property is passed on correctly.
  • If an estate is complex, it is advisable to appoint a solicitor who can do a lot of the work and guide the executor to ensure that they meet their responsibilities. The solicitor will be paid out of the estate and usually charges around 3% of the value of estates. If matters are straightforward, the executor can decide to make a personal application in taking out probate.
  • 7. What are my/our (company) legal responsibilities when we employ someone to work on my/our farm (in my/our company)?

    Employment contract

    While the full contract of employment does not have to be in writing, you must give your employee certain terms and conditions of employment in writing within two months of starting employment.

    It should include details such as the date of commencement of employment, job title or nature of work, whether there is a probationary period and for how long, terms and conditions relating to hours of work, pay, notice periods, etc.

    While I would advise farmers to get a solicitor to draft a contract of employment, a sample written statement of terms of employment is available for free at https://www.workplacerelations.ie/en/Publications_Forms/Sample_Terms_of_Employment.pdf.

    Payslip

    As an employer, you are legally obliged to provide a payslip which should include a breakdown of gross pay, hours worked, hourly rate of pay, holiday pay, sick pay and deductions.

    Health and safety

    The Safety, Health and Welfare at Work Act 2005 places a legal duty on employers to prepare and work to a safety statement. However, farmers with three or fewer employees will be able to fulfil their statutory duty by completing a risk assessment document, which should be brought to the attention of all employees. It is recommended to get employees to sign the document as soon as they begin work.

    Disciplinary procedures

    If you do dismiss an employee, you must be able to show that there were fair grounds for dismissal and that fair procedures were followed.

    The Workplace Relations Commission has a code of practice on grievance and disciplinary procedures which states that employers should have written grievance and disciplinary procedures. These procedures should set out the stages and process employers should follow in relation to alleged shortcomings of an employee.

    Generally, the procedures allow for informal warnings leading to written warnings and ultimately to dismissal.

    8. Our local community representative (another local farmer) came in for a chat this week asking if it was OK for a local group of walkers to walk down by a river that passes along by our farm on a regular basis. Who is responsible and who is liable if there was an accident while on my land?

    Walkers can be categorised as recreational users. The duty you owe is not to intentionally injure the person or damage the property of the person. Neither can you act with what is termed as reckless disregard for the person or the property of the person. For example, don’t have a bull or stallion in a field or on such a route without a sign to warn the public.

    The duty of care owed by a farmer as occupier of the land to a recreational user or a trespasser is minimal – a higher duty of care is owed to visitors.

    A farmer giving a person permission to enter land does not make the entrant a visitor, therefore it does not increase the duty of care owed.

    In a 2017 appeal, Mr Justice Michael White dismissed a damages claim and overturned a decision to award a hillwalker compensation for injuries after tripping on the Wicklow Way. The judgment highlighted that walkers need to take responsibility and precautions when using such walking routes.

    It is advisable that all landowners have public liability insurance. This covers injury, disease or property damage caused to a member of the public arising from landowning/farming activities.

    Recreational users are also advised to have public liability insurance to cover their liability for injury or damage caused to the landowner/occupier, or to another third party, as a result of their own negligence.

    The representative bodies for most countryside recreation activities arrange insurance cover for registered members.

    9. If one of my show bulls kicks someone at a summer show, what’s my responsibility and who is liable?

    Depending on how the accident occurred, responsibility can rest with the farmer/handler of the animal, the show society running the show or the general public attending the show. Each of these people have responsibility in relation to safety at the show.

    Parents, especially, need to keep control of their children at such events as they could also be held to be at fault in the event of an accident.

    You should first check if the show society has insurance taken out and what that insurance covers. While most summer shows have public liability, it is advisable for each exhibitor to have adequate insurance in the event of injury or damage caused by their animal and to cover the value of the animal.

    Contact your own insurer/broker to enquire whether your insurance covers you for an animal at a show and, if not, take out additional insurance. This can be done by putting a clause into your general insurance or taking out specific cover, if necessary.

    The Irish Shows Association has issued guidelines to prevent and minimise an accident occurring. These should be followed to ensure that a farmer/handler and indeed the show society can defend a claim by showing that they took appropriate steps to prevent such an incident from occurring.

  • Animals should be allowed to relax after travelling and unloading before they are brought to the show ring.
  • The steward supervising the unloading of cattle must be satisfied that the animal is calm and can be controlled at all times.
  • If the animal is agitated and not likely to settle down, the steward can refuse entry to the show and ask the owner of the animal to take the animal away.
  • All animals must wear a harness to which a leading rope can be secured.
  • Stewards should ensure orderly positioning of vehicles in parking areas to enable the safe unloading and loading of livestock for washing, grooming and showing.
  • Appropriate barriers (well-secured stakes, rails, gates and orange mesh) should be erected around the showing area to securely tie up livestock for showing.
  • What are the top five dos and don’ts when writing a will?

    Put a will in place as the consequences of not having one in a farming situation can be disastrous.

    Top dos

  • Put a will in place as the consequences of not having one in a farming situation can be disastrous. In the event of intestacy, the spouse will receive two-thirds of the estate and the children one-third between them. If they cannot agree on how to manage the farm as co-owners, any of them can petition the court for an order for sale.
  • Have an enduring power of attorney put in place to allow the business to continue to be run as a going concern in the event of mental incapacity as the will does not take effect until someone has died.
  • Communication is vital. While people often do not want to disclose what is in a will, it is better to have it out in the open rather than hearing it from a solicitor, which can have a devastating effect on family relations for generations.
  • Consult other advisers such as your accountant, tax adviser, agricultural consultant and banker. It is important to be aware of the knock-on effect of your wishes in your will on tax planning, EU and Department schemes, etc.
  • Keep a record of assets and advisers which someone can pick up in the event of death and allow the business to keep running, eg where bank accounts are, the herd number and passwords.
  • Top don’ts

  • Do not procrastinate. Make your will based on the here and now; it can always be changed.
  • Do not assume that people know what they are getting. Make sure that if you are dividing up property that maps are properly drawn up to scale and attached to the will.
  • Do not assume that unmarried couples have the same rights as married couples.
  • Do not fail to keep your will up to date – circumstances and the law change.
  • Do not attempt to draft your own will using DIY kits. The risk of getting it wrong can be too costly.