Conservation Easements: Structuring Effective Documents and Enforcing Terms and Conditions

Description

A conservation easement is a legally enforceable land preservation agreement between a landowner and either a government agency or a qualified land protection organization for conservation of the land and its resources. As such, certain types of development, commercial and industrial uses, and other nuisance activities may be managed while preserving the ownership rights of the landholder, making conservation easements flexible preservation strategies.

However, counsel must understand how to draft, utilize and enforce easements, as the easement holder accepts the document in perpetuity and holds the risk and responsibility related to its enforcement. Counsel must know how to assess and inventory the property’s preservation value and natural resources, and how to identify responsible resource management actions and stewardship priorities and activities for the property.

Donations to a “stewardship fund” often enable stewardship activities on lands subject to a conservation easement. They may be beneficial from a tax standpoint for the donors, but counsel must meet applicable legal requirements and ensure compliance with applicable income, estate and property tax regulations.

Further, because easement holders are responsible for enforcing the easement in perpetuity, they must continually contend with violations by other landowners and third parties, including trespass or encroachment claims; improper exploitation of natural resources; or claims under the varying state criminal, tort and real property laws.

Listen as our authoritative panel discusses both the challenges associated with drafting effective conservation easements and the considerations for enforcing the provisions of a conservation easement in perpetuity.