What happens to a hay crop in the field at closing?
The written purchase contract settles it. A Virginia contract for the sale of real estate is not enforceable by action unless it is in writing and signed by the party to be charged, so whether standing, cut or baled hay goes with the farm belongs in that contract. Where a tenant grew the crop, Virginia's common-law right to emblements can give the tenant rights the contract has to account for.
The hay is settled in the written contract, line by line, before anyone mows
Under Va. Code 11-2, a contract for the sale of real estate is not enforceable by action unless the contract, or a memorandum of it, is in writing and signed by the party to be charged. That puts the hay where everything else in a farm sale is settled: in the written contract, before closing. Whether any rule fills the gap when a contract says nothing about the crop is a question for an attorney.
- Does hay still standing in the field convey with the farm, or is it reserved to the seller?
- What about hay that is cut but not yet baled, and bales already stacked in a barn?
- If another cutting could come before closing, or after it, who has the right to make it, by when, and how does access to the property work?
Deciding early what conveys, including equipment, other crops and livestock, is part of selling your farm, and what conveys with a house specifically is a separate question at what conveys with a house in Virginia.
Standing timber on the same farm is a different matter again. Whether any of a farm's timberland, or a single hardwood stand, was already sold or reserved apart from the land is a question for the title and the contract, not something that follows the hay.
A tenant who grew the hay may hold a right to emblements the contract has to account for
The picture changes where the hay is not the owner's crop but a tenant's, grown under a farm lease. In Virginia the right to emblements is as at common law. What that common-law right covers on a particular lease is an attorney's reading, not a rule this page can state.
The Code does add specifics around it. A tenant entitled to emblements pays a reasonable rent for the land the emblements occupy. And in a foreclosure sale under a deed of trust or mortgage, which is not an ordinary sale by the owner, the sale is made subject to a tenant's crop planted under a bona fide lease of no more than one year, entered into with the mortgagor after the deed of trust while the mortgagor remained in possession and before the premises was advertised for sale.
The hay line sits beside the tax proration and the contingencies
A hay clause is one line among many in a farm contract, and the lines around it follow their own rules.
How real estate taxes are divided between buyer and seller at settlement is its own subject at how are property taxes prorated at closing, and the due diligence period a contract runs on is covered at earnest money and contingencies. A tenant's crop rights under a specific lease, and what a contract that is silent on the hay means, stay with an attorney.
Selling a farm with hay still in the field?
Send the county, the acreage, and whether the hay is your own crop or a tenant's. Lowell will help you get it named in the contract before it becomes a question at the closing table. No cost, no obligation.
Got it. Thank you.
We'll be in touch shortly with an honest read.
Questions this raises
Who pays a tenant for ground prepared for a crop the tenant will not harvest?
Virginia's Code says those who succeed to the land pay an outgoing tenant reasonable compensation for any preparation of the land for planting a crop, if that tenant would have been entitled to emblements had the crop been planted. Whether a particular tenant would have been entitled, and what counts as reasonable on that farm, is an attorney's question on that lease.
Can a seller keep the right to make one more cutting of hay after closing?
That is a term for the written contract to carry: whether the seller may come back for a cutting, by what date, and how access to the property works after closing. Whether a promise about the hay that never made it into the signed contract can be enforced is an attorney's question.
Where this page's facts come from
Every rule, office and figure above traces to one of these. Rules change; check the office before you act on one.
- Va. Code 11-2, contracts required to be in writing Virginia General Assembly
- Va. Code 55.1-1700, right to emblements Virginia General Assembly
- Va. Code 55.1-1701, rent for land occupied by emblements Virginia General Assembly
- Va. Code 55.1-1702, compensation for an outgoing tenant's preparation of land Virginia General Assembly