Conservation Tools

When landowners grant a conservation easement, they empower the easement holder to uphold the easement’s conservation objectives. The holder’s exercise of the power – the property monitoring, reviews, enforcement actions and other stewardship activities in support of the objectives – requires money.

To finance stewardship, most land trusts collect from the owners a single contribution at the time the conservation easement is granted. The contribution is invested, with the returns used to fund the land trust’s routine stewardship activities; the principal typically is left untouched, except if needed to fund enforcement actions.

A contribution of sufficient size to cover the holder’s long-term stewardship costs, if required in its entirety at the time of easement acceptance, is not affordable for many prospective donors. However, bringing the contribution down to an affordable level will leave a funding shortfall, impairing the holder’s ability to effectively provide stewardship in the long run. The key to achieving both affordability for the owners and adequacy for the holder is to spread payments in support of stewardship over time. A variety of stewardship funding arrangements are available for this purpose.

This guide together with the guide Legal Considerations for Stewardship Funding Arrangements (“Legal Considerations”) and the Model Stewardship Funding Covenant and Commentary will help the reader understand the opportunities, implementation pathways, strengths and limitations of stewardship funding arrangements and their role in enabling holders to meet their stewardship obligations over time.

State laws such as Pennsylvania’s require governing board authorization of real estate transactions and specify what constitutes authorization. In addition, Land Trust Standards and Practices specify best management practices regarding organizational approval of land and easement transactions. Within the bounds of law and Standards and Practices, a nonprofit corporation has substantial room to establish policies and practices best suited to its organizational character and the nature of its real estate transactions.

At closing, the parties to the sale or donation of land, easement or other property interest take the final actions necessary to complete the transaction and the property interest is conveyed to the buyer/donee. This guide, coupled with the Model Checklist for Real Estate Transactions, helps users organize and expedite the closing of property transactions for conservation projects.

A conservation easement is a power vested in a land trust or government to constrain, as to a specified land area, the exercise of rights otherwise held by a landowner so as to achieve certain conservation purposes. It is a real property interest established by agreement between a landowner and a land trust or government. The conservation easement runs with the land, meaning it is applicable to both present and future owners of the land. As with other real property interests, it is recorded at the county recorder of deeds office.  

The conservation easement's overarching objectives and administrative terms for advancing the objectives are tailored to the particular property and to the goals of the landowner and conservation organization. For example, a conservation easement might allow sustainable forestry but restrict most other uses. Another might prohibit construction and logging within 100 feet of a stream but allow it elsewhere. Another might support farming but forbid development.

Most conservation easements are donated by landowners who wish to protect a beloved place. Under certain circumstances, easements are sold at a bargain price or fair market value. Donations and bargain sales that meet IRS requirements can result in federal tax benefits.

The Model Grant of Conservation Easement and Commentary, published and maintained by the Pennsylvania Land Trust Association, includes a state-of-the-art easement document as well as more than seventy pages of in-depth guidance for using the model.

The Conservation and Preservation Easements Act resolves a number of legal issues affecting conservation easements and stands as a strong policy statement of the Commonwealth of Pennsylvania in support of conservation and preservation easements. A few items must be incorporated in the granting document to conform to the Act and, thus, be entitled to its advantages. A non-conforming conservation easement may be amended by holder and landowners to bring it under the protection of the Act. Conservation easements not conforming to the Act remain valid and enforceable under the common law.

When accepting a conservation easement, a holder is responsible for ensuring the eased property’s conservation values are protected in perpetuity: the holder must uphold the easement’s conservation objectives forever. Proper stewardship of conservation easements includes regular site monitoring visits, responding to landowners’ questions about the easement, maintaining positive relationships with landowners, building relationships with new landowners, ensuring easement violations are appropriately resolved, responding to landowners’ requests to exercise reserved rights, and amending the easement when necessary.

This guide helps readers better understand the options and costs associated with these stewardship activities. The average costs and average amount of staff time needed presented in this guide are based on an internet search and are composed mostly of averages found in sample stewardship cost calculators. Readers should be aware that sample size for this data is small and readers will need to estimate costs based on the specificities of each easement.

The digital spreadsheet that accompanies this guide can help readers to estimate the stewardship costs associated with a project and identify the investment needed to finance the stewardship.

This guide describes the range of costs incurred by land trusts and agricultural land preservation boards in completing due diligence for conservation easement acquisition. It reports costs for surveys, baseline data, appraisals, title search, phase 1 environmental assessments, and legal fees. The presented information is based on a 2011 survey of land trusts and agricultural land preservation boards and a review of land trust grant applications. Although the data was gathered in the context of conservation easement projects, much of the information is relevant to fee acquisition of land.

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GPS can be useful for conservation organizations and local governments for monitoring their conservation easement holdings and managing their land preserves. GPS enables users to record positional data in the form of points (e.g., location of a tree or property corner), lines (e.g., a trail) or areas (e.g., a lake). Users can record the locations of any property features that they consider useful for conservation planning such as wildlife habitat units, fences, topography, soil erosion problems, invasive species and easement violations. The recorded data can be imported into Geographical Information System (GIS) software, enabling users to create highly accurate maps of their conservation holdings. Users can also use GPS to quickly re-identify in the field the precise location of previously recorded features. 

Good document management and control practices can reduce the time and resources necessary to prepare documents, prevent comments and edits from being lost in the shuffle and assure that all project participants are aware of changes to documents previously reviewed. Although the context of this guide is the preparation of documents needed for completing real estate transactions, the suggestions made below may be helpful in the preparation of a variety of documents.

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The Model Grant of Conservation Easement and Commentary includes a state-of-the-art legal document as well as 73 pages of in-depth guidance for using the model. First published in 2005, the sixth edition was published in 2011. The latest edition can be downloaded free-of-charge at ConserveLand.org or ConservationTools.org. Published by the Pennsylvania Land Trust Association for the benefit of private and public holders, landowners and their respective legal counsels, it is written to conform to Pennsylvania law and is the standard of choice in Pennsylvania. It is easily adapted for use in other states and is used across the country. The model and commentary are the products of countless hours of research, regular feedback from users, scrutiny by legal professionals, and discussion and drafting by the development team. The model is characterized by plain language, consistent form and easy-to-read formatting. It is written to achieve meaningful resource protection while being fair to both landowner and holder.

The Pennsylvania Land Trust Association maintains a suite of model legal documents and accompanying commentaries to assist land trusts, government units, landowners and donors, as well as their respective legal counsels, in implementing conservation transactions and other conservation-related activities. The models and commentaries are the products of countless hours of research, regular feedback from users, scrutiny by legal professionals, and discussion and drafting by the development team. They are characterized by plain language, consistent form, easy-to-read formatting and incorporation of best practices.

The models are regularly used in conservation projects and reviewed for potential improvement. They are updated as needed to reflect advances in knowledge and to maintain them as state-of-the-art legal documents.

The model easement documents are written to achieve meaningful resource protection while being fair to both landowner and holder. The other models are likewise written to be fair to all parties in advancing the purpose of the particular document. The models are written to conform to Pennsylvania law but are easily adapted for use in other states.

Mortgage subordination is mandatory for the donation of a conservation or trail easement to qualify as a charitable deduction for federal tax purposes and, to assure that the easement will survive a foreclosure of the mortgage, it is usually required in other easement transactions as well. Obtaining a subordination has never been quick or easy but it’s become even more difficult and time consuming due to the consolidation of mortgage servicing into an industry comprised of a few huge databanks. This guide shows users how to take advantage of this development by setting out a process that conforms to industry requirements.

An option to sell (sometimes called a “put” option) gives an owner the right to compel another to purchase property at a certain price within a certain period of time. One reason to create such a right is to ensure that a property acquisition can be undone if expectations regarding funding or other matters related to the acquired property are not met.

Conservation organizations often rely on promises by donors to donate at a future time money, land, conservation easements, services and other valuables. Before investing time and money in a prospective project, a conservation organization may want the prospective donor’s promise to support the project to be a legally binding obligation of the donor. Donors may fear that a legally binding obligation will nullify the wholly voluntary nature of their gift, thereby eliminating the possibility of receiving a federal income tax deduction for making a charitable contribution.

This guide offers suggestions on ways to create a legally enforceable promise to make a gift. The guide also offers suggestions on ways to preserve the voluntary nature of donor’s investment in the project and, hence, allow for the possibility of the donor claiming a deduction for federal tax purposes.

A carefully crafted document evidencing the proposed terms of donation (the “donation document”) can insure that there is a meeting of the minds between a donor and donee about the investments each will be expected to make to bring a project to fruition while addressing the concerns outlined above.

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Pennsylvania’s Recreational Use of Land and Water Act limits landowners’ liability for personal injury or property damage if they make their land available to the public for recreation free of charge. Landowners may further limit their liability using the other tools outlined in the guide Reducing Liability Associated with Public Access.

Pennsylvania’s Recreational Use of Land and Water Act and other statutes provide substantial protection from liability to landowners who permit the public to come onto their land for outdoor recreation. These protections also apply to holders of trail and other easements. The best defense for landowners and easement holders, however, is preparedness: posting signs, obtaining releases, requiring indemnity, securing insurance coverage and taking steps to warn users of potentially dangerous conditions. This guidance discusses a variety of legal and other means to avoid or minimize liability.

The ownership of real estate can be divided into a present interest (called a "life estate") and a future interest (called a "remainder" or a "remainder interest"). The division is effectuated, unconditionally and absolutely, by delivery of a deed that includes a clause reserving to the transferring owner (sometimes called the "grantor") ownership of the land for the term of the reserved present interest. Reservation of the present interest allows the owner to retain ownership for a period of time measured by the life of one or more individuals, by a term of years, or by a combination of the two.  The transferee owner identified in the deed (sometimes called the "grantee") holds the remainder interest -- the ownership interest that immediately begins when the life estate ends.

The transfer of the future interest can occur via gift or a sale by the landowner and can be an important tax and estate planning tool. The donation of a personal residence or farm subject to a reserved life estate can result in a federal income tax deduction. If appropriate, coupling this with the donation of a conservation easement may provide additional tax benefit as well as permanent protection of conservation values.

If an owner is willing to donate or sell land only for so long as it is used, or not used, for a particular purpose, the owner can transfer the land on a conditional rather than absolute basis. The deed used to convey the property can include terms that will trigger a change in ownership back to the original owner (or owner’s heirs, successors and assigns) if use or ownership of the land falls out of compliance with the conditions set forth in the deed.

The right of first purchase can be a right of first offer, a right of first negotiation, a right of first refusal or a combination of these rights. The right of first offer requires the owner to offer the property, on owner’s terms, to the person who holds the right (called the “holder”) before offering the property to others. The right of first negotiation goes one step further and requires the owner to negotiate with the holder in good faith for some period of time. The right of first refusal allows the holder the right, after offers are solicited from others, to match any offer that the owner is willing to accept. These rights are often combined so that the holder has the opportunity for first response and the assurance that, if owner’s expectations are unrealistic before exposing the property to the market, there is still the opportunity to match a market price.

A riparian buffer protection agreement limits construction on and uses of land bordering a waterway to protect that resource and advance other conservation purposes agreed to by the landowner and a private charitable conservation organization or government (the “holder”). While the property remains in the landowners’ control, the landowner grants to the holder the power to constrain actions impacting the land to ensure that the agreed to conservation purposes are respected. This power is often called a “conservation easement” or “conservation servitude” because it is an interest, albeit narrow, in real property. The riparian buffer protection agreement is recorded at the county recorder of deeds office and “runs with the land”, binding both present and future owners to its terms.

The agreement is tailored to the particular property and to the goals of the landowner and conservation organization or government. For example, within the first 50 feet of a stream, activities inconsistent with water and habitat protection may be ruled out but, extending further outward, a variety of sustainable uses may be allowed depending upon their potential to erode soil or otherwise degrade water resources.

The Pennsylvania Land Trust Association publishes and maintains the Model Riparian Buffer Protection Agreement and Commentary for the benefit of private and public holders, landowners and their respective legal counsel.

By donating or selling a trail easement to a nonprofit organization or government (the “Holder”), a landowner may provide their land for a public trail without having to subdivide the land or lose ownership and control of the land. The easement may address matters such as:

• How wide is the trail and what sort of facilities are allowed?
• Are bicycles allowed? Horses? Picnicking?
• May the landowner close the trail temporarily for hunting? Timber harvests? Manure spreading?
• Who is liable if there is an accident?

The Pennsylvania Land Trust Association has created the Model Trail Easement Agreement as well as other models to assist in establishing public trails on private property.