Conservation Easements: Structuring Effective Documents and Enforcing Terms and Conditions

A conservation easement is a real property interest conveyed by a landowner to either a government agency or a qualified land protection organization for conservation of the land and its natural resources. The easement’s granting document empowers its holder to block development, uses, and activities that could harm the conservation values defined in the grant, while keeping the land in the owner’s ownership and control.

The holder of a conservation easement accepts a perpetual and costly obligation to enforce its restrictions. By conveying a conservation easement, landowners permanently limit their use and development rights. Accordingly, counsel to both landowners and easement holders must understand the legal nature of conservation easements, and how they are drafted, administered, and enforced.

Donations of conservation easements and funds to support their stewardship 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 remain legally and financially prepared to address violations by the landowner and potentially 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.