If a land trust intends to amend a grant of conservation easement, implementation of the changes requires careful planning and drafting. The consequences of a poor execution range from missed opportunities to improve easement stewardship to inadvertent elimination of conservation protections.
This guide informs easement holders of legal matters to consider under Pennsylvania law and the Internal Revenue Code when making decisions regarding the amendment of grants of conservation easement.
A conservation easement limits certain uses on a property in order to advance specified conservation purposes while keeping the land in the owner’s ownership and control.
A conservation easement limits certain uses of the land in order to advance one or more conservation objectives while keeping the land in the owner’s control. It is established by mutual agreement of a landowner and a private land trust or government.
The holder of a conservation easement must monitor the eased property to confirm compliance with conservation restrictions and, when necessary, take action to uphold the conservation objectives of the easement. These and other stewardship activities result in costs, year in and year out, to the holder.
Fifty-seven Pennsylvania counties have agricultural land preservation boards that purchase agricultural conservation easements. Sixty-five private charitable organizations accept donations of conservation easements or, less commonly, purchase them. These two paths to farmland preservation differ in many ways.
Conservation easements are intended to last—to ensure protection of important resources, no matter people’s whims—through the decades and centuries. However, the world changes and so do understandings of how best to meet conservation objectives. A land trust must be prepared to address these changes in order to ensure that its conservation work is effective while assuring its supporters and the public that it is a reliable agent of conservation. This resources serves as both a guide to responsible decision-making and a model policy for easement amendment.
Conservation organizations can avoid many potential difficulties in conservation easement stewardship by ensuring that their conservation easement documents are drafted to conform with the Conservation and Preservation Easements Act.
A conservation easement may have one or more holders responsible for upholding the easement’s conservation objectives. It may have a beneficiary, an entity with some rights to manage the easement in furtherance of the conservation objectives but no responsibility to do so. It may also provide a contingency plan to replace a holder in the event the holder cannot or will not perform its duties. Effective long-term easement management requires that when more than one entity shares easement management rights, the relationship between the entities must be carefully delineated.
The Model Grant of Conservation Easement and Declaration of Covenants with Commentary provides users with a state-of-the-art legal document and guidance to customize it to nearly any situation. No easement document has benefited from more real-world testing and peer review.
Little evidence exists to support the proposition that a donated conservation easement, in the absence of a charitable trust agreement (not to be confused with the grant of conservation easement), is a charitable trust in Pennsylvania; indeed, there is complelling evidence to the contrary. (Holder covenants may be used to buttress easments and do not run into the legal obstacles or suffer from the policy failings of the trust proposition.)
No legal precedent exists in Pennsylvania for finding that a conservation easement acquired by a private land trust is a public trust.
When a mortgage predates an easement on a property, the easement could be extinguished in a foreclosure if the owners default on their mortgage payments. And if the easement is to be donated and the donors wish to obtain a tax deduction, additional complications arise. These problems can be avoided by obtaining an agreement from the mortgage holder appropriate to the circumstances.
A riparian buffer protection agreement limits activities on all or a portion of a property to advance conservation purposes while keeping the property in the control of the landowner.
A landowner may agree to one or more funding arrangements that require the landowner or successive owners of an eased property to make one or more payments to the easement holder to support stewardship of the property. These arrangements may be customized to fit the stewardship demands created by the particular conservation easement and the financial circumstances of the owner.
Some donations of conservation easements qualify for a federal income tax deduction; others do not.
By statute and by common law interpretation, a conservation easement is a real estate interest and is governed by real estate law, in particular, the law of servitudes. This guide analyzes the nature of the conservation easement and the operation of the document granting the easement. It includes discussion of the mechanisms that assist in upholding the easement’s conservation objectives in perpetuity.
Who can assert claims and be heard in Pennsylvania’s courts if a dispute heats up over the management of a conservation easement?