Conservation Easements: Structuring Effective Documents and Enforcing Terms and Conditions

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.

I. Drafting and interpreting conservation easements

II. Benefits and limitations of conservation easements

III. Challenges in enforcing easements in perpetuity

IV. Issues associated with the amendment of conservation easements

V. Encroachment and other legal rights to action

The panel will review these and other key issues:

• How should counsel draft and structure conservation easements to maximize benefits to the holder?
• What are the challenges and state law implications of enforcing easements in perpetuity?
• How can counsel advise clients on funding and benefiting from stewardship activities?