While it is not clear that every court would impose a lien on a piece of real property in a PACA claim, the title insurance company has indicated that PACA affidavit and indemnity agreements will be required going forward for the sale of any property owned or leased by a potential PACA dealers. Under the broad language of PACA, many tenants are or could be considered “dealers” under the terms of PACA. Common retail entities subject to PACA trust duties include grocery stores, “big box” stores, and any retailer purchasing produce in “wholesale or jobbing quantities.”6 It is possible that other operations, including table-service and fast-food restaurants, catering companies, mini-marts, convenience stores or even the local coffee or donut shop may be subject to PACA trust duties, if they are purchasing produce in “wholesale or jobbing quantities.”
I don’t think in this instance it hurts to get the following affidavit executed. You can have your examiner string together a B-I exception along this line:
The Company should be provided an affidavit and indemnity that it is not the subject of, nor does it anticipate to have imposed, any lien under the Perishable Agricultural Commodities Act (“PACA”) and the Packers and Stockyards Act (“PASA”) as those regulations are set forth in 7 U.S.C. Section 499a, et. seq. and 7 U.S.C. Section 181 et. seq..