Law isn’t something most people think about when planting seeds or planning a garden. Soil, sun, and the promised bounty of a late summer harvest aren’t often associated with incorporations, contracts, and municipal bylaws. While passion, community support, and hard work are the seeds and soil of any successful community garden, the law provides community gardens with overall structure. For community gardens the law plays an important role in helping like-minded groups of people organize to grow fresh, local, healthy food in their communities.
What is a Community Garden?
A community garden is a place where a group of people collectively garden a piece of land. Community gardens provide participants with fresh, local, and seasonal produce. They create a sense of community among members and preserve local green spaces. While the concept is simple – get a group of people together to garden a piece of land – implementing the concept can be time-consuming and difficult. Who should be involved? What land is available and suitable? Is gardening permitted? How should the garden be operated?
Once a group of like-minded gardeners decide to form a community garden, they need to formally organize and decide how they want their organization to operate. Many community gardens choose to incorporate as societies under the Alberta Societies Act which allows five or more people to incorporate for any “benevolent, philanthropic, charitable, provident, scientific, artistic, literary, social, educational, agricultural, sporting or other useful purpose, but not for the purpose of carrying on a trade or business”. While not necessary to run a community garden, incorporating allows the organization to own land, enter into contracts, and borrow money. Incorporating also limits the personal liability of the incorporating members, meaning they are not personally responsible for the debts and obligations of the community garden.
In order to apply for incorporation, a community garden must choose a name, state its purpose on the incorporation application form, and create bylaws that govern the society. The community garden’s name cannot be similar to any other society or corporation’s name in Alberta. The name must also include three elements: a distinctive element, a descriptive element, and a legal element. The descriptive element is a word that makes the name unique and sets it apart from other societies or corporations, the descriptive element describes what the society is or does, and the legal element must be one of a list of permitted endings. Once a name has been chosen, the community garden must obtain a NUANS (Newly Upgraded Automated Name Search) report comparing the community garden’s name with those of existing societies and corporations in Alberta. The search results are submitted with the bylaws and application form when applying to incorporate.
The second requirement for incorporation is a purpose statement. The statement should set out the organization’s object or purpose for incorporating. For example, a community garden may state that its purpose is to provide its members with fresh seasonal produce and to encourage more people to try gardening.
The third requirement for the community garden’s incorporating members is to draft a set of bylaws. The bylaws set out how the community garden will be organized and how it will operate. There are numerous issues that must be addressed in the incorporating bylaws, including: membership, meeting procedures, the appointment and responsibilities of directors and officers, and the borrowing power (if any) of the society.
If your community garden would like to incorporate or if you would like more information on societies in Alberta please visit Service Alberta for more information and links to application forms.
A Place to Grow
Now that the community garden has been incorporated, it needs to find a place to grow. There are numerous factors to consider when looking at prospective garden locations: location within the community, access to water, accessibility for members, and soil quality. Two important legal questions are: how is the land zoned and who owns it?
In Alberta, every municipality must pass a Land Use Bylaw (LUB). The LUB divides the municipality into districts and sets out permitted and discretionary uses of the land. One of the goals of land use planning is to group similar and compatible uses to reduce conflict. For example, playgrounds and daycares are often permitted on discretionary uses of land zoned for residential use whereas recycling depots and waste service operations are only permitted in lands zoned for industrial use. In some cases, a municipality may not permit a community garden because of concerns over increased traffic, noise, or impacts on neighbouring land. In other cases, certain aspects of the community garden may be prohibited such as composting, keeping bees, raising chickens, or selling the garden’s harvest commercially. As a result, it is important for community gardens to find out whether there are any limitations on gardening activities in their area. To find out more, contact your local municipality.
Assuming that community gardening is allowed, the next step is to determine who owns the land. Oftentimes gardening space is provided by municipalities, churches, schools, hospitals or other organizations, but sometimes a vacant lot is the perfect garden location. In order to identify the land owner, the community garden can perform a Land Title Search. In Alberta, private land owners are listed on title. Title information is public record and anyone can request a title search. In general, the legal land description is required but various private registry offices can perform an additional search using the municipal address.
If the landowner is identified and agrees to allow the community garden, both parties should enter into a written agreement setting out the terms of the arrangement. In general, the landowner will agree to lease his or her land to the community garden for a set period of time under certain conditions. The lease should include the location of the land to be leased, the use of the land, the duration of the lease, any renewal provisions, and the amount of rent and security deposits. The landowner will want to be waived of any liability that could arise from the community garden’s use of the land and will likely require that the organization obtain liability insurance. The landowner will also want the organization to agree to abide by any laws, including municipal bylaws.
Getting Ready to Plant
Once the community garden has incorporated, identified suitable land, and leased the land from the owner, the next step is to organize the community garden’s member gardeners. A community garden will usually enter into temporary individual lease agreements with each member and draft a set of garden rules that describe how the garden will be run and how members are expected to behave.
Gardening Agreements are contracts between the community garden society and the individual member. Individual gardeners do not contract directly with the landowner since the society has already leased the land. A gardening agreement provides individual gardeners with a temporary and non-transferable right to garden in exchange for waiving their right to sue and for agreeing to be bound by a set of garden rules.
Garden Rules help clarify what is expected of gardeners. A set of garden rules help address issues such as the upkeep of the property, participant safety, and work expectations. Having a set of rules helps resolve disputes amongst members, helps reduce conflict with neighbouring land users, and provides for a more enjoyable gardening experience.
Creating a community garden takes a lot of passion, dedication, and dirt. It also takes some planning and a legal know-how to make sure the garden is a welcome and productive part of the larger community. As the children’s song goes: “the more we get together, the happier we’ll be” planting peas under the beautiful Alberta sun. Happy gardening!