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What will the courts have to say about restricting foreign land ownership in 2024?



This interview is also available on Spotify and Apple Podcasts.


“We had a lot going on in 2023,” Micah Brown, staff attorney for the National Agricultural Law Center at the University of Arkansas, told American Farmland Owner. Brown reflected on what states have done to restrict foreign land ownership in the United States for certain countries.

But what’s next? And what role could the U.S. Supreme Court play in determining whether foreign entities can own land in America?


Brown works at the National Agricultural Law Center under the leadership of its director, Harrison Pittman. Pittman previously told American Farmland Owner to watch discussions on a new Farm Bill in 2024 to see if Congress adds federal foreign land ownership restrictions.



“China has had a small sliver of this private land ownership in the U.S.,” Brown said about the current landscape, despite the outsized attention that China receives from American politicians these days.


Canada, Netherlands, Italy, the United Kingdom, and Germany own far more private land in the U.S. China is 18th on the list, as pointed out in this story from National Public Radio in June.


“National security threats,” Brown said have the attention of politicians in the United States, “…specifically, foreign adversaries of the U.S.”


That’s why about three dozen states have already worked to place legal obstacles that prevent certain foreign entities, like China, from purchasing private American land.


Despite the political attention the issue has received, foreign investment in American land increased in 2022 (the most recent year with data), according to the USDA’s December report. The report showed an 8% increase in acres owned by foreign entities.


This Reuters report showed that the 3.4 million acre increase means that 3.4% of the country’s agricultural land is foreign owned.  Colorado, Alabama, and Michigan were the states with the biggest expansion of foreign land ownership.


The USDA seeks additional information from the public on foreign agricultural land holdings. Under Secretary for Farm Production and Conservation Robert Bonnie said in a statement, “USDA seeks to improve the information that we are collecting about foreign ownership and leasing of U.S. agricultural land. This process, which includes public input on changes to the form, will lead to more insightful reporting to Congress and the public.”  


The USDA proposed making changes to the Agricultural Foreign Investment Disclosure Act of 1978. Here are the three proposed revisions:


  • Capture additional data on long-term lessees who are required to report their transactions to USDA. 

  • Propose to collect data to assess the impacts of foreign investment on producers and rural communities, as required by AFIDA.  

  • Ask filers to voluntarily provide data that will help identify their land locations geospatially.   

The USDA requests public input on additional information on foreign land ownership until February 16th.



Micah Brown has traveled to several states to testify before legislators on possible changes in their governance of foreign land ownership. Some fail to include enforcement, Brown points out.

He is also fascinated about where questions about ownership by foreign entities could go on two different levels. One of those involves whether the courts will decide that governments have the authority to force foreign entities to divest themselves from the land that they already legally purchased. That is a prominent case happening in his state of Arkansas right now.



Brown also is curious about what the country’s laws say about the right to own land. Florida Governor Ron DeSantis approved a bill last May that restricts some real estate sales to Chinese citizens, as well as those from Russia, Iran, North Korea, Cuba, Venezuela, and Syria. Those are “foreign countries of concern,” Florida’s law states.


The law faces court challenges, as well as questions about its impact on investment funds.

RELATED: The Tampa Bay Times has followed the legal challenge into Florida’s law banning people from certain countries from owning land in the state. Read that here. 


Americans have a fundament right to own land, Brown reminds everyone. But here is where the uncertainty lies, according to Brown: “The (U.S.) Supreme Court actually has not conclusively decided on what types of rights…individuals and businesses that are not even temporary residents…what kind of land rights they have in this country.”


And that type of future decision by the court could ultimately decide whether this push to ban certain foreign land ownership can last.


NOTE: National Agricultural Law Center Staff Attorney Micah Brown and USDA Under Secretary for Farm Production and Conservation Robert Bonnie will be keynote speakers at the 17th Annual Land Investment Expo in downtown Des Moines, Iowa, on January 9th, 2024.

 

To check out the full list of speakers, unique experiences and to register, click here. 


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