A conservation easement is a legally enforceable land preservation agreement between a landowner and a government agency or a qualified land protection organization for the purposes of conservation of the land. A conservation easement restricts real estate development, commercial and industrial uses, and certain other activities on a property to a mutually agreed upon level. However, the property remains the private property of the landowner.
The primary purpose of a conservation easement is to protect land from certain forms of development or use. Lands which are generally subjected to conservation easements include agricultural land, timber resources, and/or other valuable natural resources such as wildlife habitat, clean water, clean air, or scenic open space.
Nearly all states have enacted laws specifically authorizing the creation of conservation easements as valid interests in land. These laws are generally modeled after the Uniform Conservation Easement Act adopted by the National Conference of Commissioners on Uniform State Laws in 1981. States that have adopted the Uniform Conservation Easement Act include Alabama, Alaska, Arizona, Arkansas, Delaware, District of Columbia, Idaho, Indiana, Kansas, Kentucky, Maine, Minnesota, Mississippi, Nevada, New Mexico, Oregon, South Carolina, South Dakota, Texas, Virginia, West Virginia, Wisconsin and Wyoming.
The term “Conservation easement” means a nonpossessory interest of a holder in real property imposing restrictions and obligations on real property in order to protect natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property. The holder of a conservation easement may be a governmental body or a charitable corporation, charitable association, or charitable trust. The easement may also be enforced by an assignee of the holder of the easement.
A unique feature of the Uniform Conservation Easement Act is the “third-party enforcement right.” Accordingly, an easement may empower an entity other than an immediate holder to enforce its terms. However, the possessor of the third-party enforcement right must be a governmental body or a charitable corporation, association, or trust.
A conservation easement can be of an unlimited duration. The restrictions and obligations attached to the real property move along with the land when there is a transfer of ownership. The terms of the easement can be modified or terminated. Similarly, an easement will be valid even though it is not appurtenant, and imposes a negative burden. No privity of contract, or effect on a dominant estate, is required. However, the easements may be created only for purposes which are intended to serve the public interest. The easement cannot restrain prior rights of the owners of the real property unless the owners have consent to it. It also has to be noted that courts have the power to modify or terminate a conservation easement.
An action to enforce, modify or terminate a conservation easements may be brought by an owner of the real property, a holder of the easement, a person having a third-party right of enforcement or a person authorized by any law.