Conservation Tools

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. The conservation easement is established by agreement between a landowner and a land trust or government government. A real property interest that is recorded at the county recorder of deeds office, the conservation easement runs with the land, meaning it is applicable to both present and future owners of the land.

The conservation easement agreement is 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 Pennsylvania Conservation Easement & Commentary, published and maintained by the Pennsylvania Land Trust Association, includes a state-of-the-art easement document as well as more than sixty 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.

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.

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.

A stewardship fee is a means for a conservation organization to secure the financial commitment necessary to undertake long-term stewardship of a conservation easement. The landowner who cannot or will not make a cash contribution or pledge up front to cover the easement holder’s long term stewardship liability may be willing to establish a fee that will be borne by future owners of the land or that will only be paid upon certain triggering events.

Ensuring that the conservation organization can collect a fee from future landowners who did not, themselves, promise to make payment, requires careful planning. A funding commitment (e.g., a stewardship fee) that is enforceable against the donor who made the promise is relatively easy to create (see discussion in Pledges and Donation Agreements). To enforce the funding commitment as the personal obligation of a future owner is far more challenging: Either the commitment must meet the requirements of a covenant running with the land (including that the payment be directly connected to the future owner’s use and enjoyment of the land) or the future owner must adopt the commitment as his own. The commitment may also be collected from the value of the conserved land by having it secured by a mortgage recorded after the recorded conservation easement.