The Tug Hill Tomorrow Land Trust provides landowners with a photo-rich, word-light, 11-page explanation of the 8 major steps required to establish a conservation easement to held by the land trust.

First published in 2010 and updated in 2014, this report compares and contrasts the conservation easement enabling statutes enacted across the United States and discusses the key issues addressed and not addressed by these statutes.

This is a comprehensive book on the tax benefits of the charitable contribution, or bargain sale, of a conservation easement. It provides a detailed explanation of the complex and extensive requirements of the federal tax code and related concepts, including the rules governing the operation of tax-exempt organizations such as land trusts.

Brown presents her thesis that private parties should have a common law property interest in conservation easements sufficient to confer standing to seek injunctive relief. She briefly describes the history and rationales underlying the creation and perpetuation of conservation easements and the close relationship between preservation and a strong private property regime, discusses challenges to perpetual conservation easements under the doctrine of changed conditions as well as the importance of private-party standing to the defense of conservation easements, and considers efficiency and social justice arguments in favor of a restricted application of the doctrine of changed conditions. She demonstrates that decentralizing property ownership interests by enforcing property owners’ decisions to burden their property with perpetual conservation easements is consistent with a democratic property system.

Sample of Brandywine Conservancy's co-holding agreement for easements co-held with the county.

This article explores conservation easement drafting strategies responsive to global warming and climate change. It proposes the development of an "Ark" easement, which unlike traditional, perpetual easements, would be terminable by the holder without resort to a judicial proceeding if global warming caused changes render the conservation purposes of the easement impossible or impractical. For this strategy to succeed, however, the easement holder must be able to recover the full, appreciated value of the development rights and redeploy them to further the social good of land and resource conservation.

In light of the changes global warming will bring, this article creates a case for the argument that upon any easement termination, it is the holder of a conservation easement that is entitled to the appreciated value of the development rights held in abeyance by a conservation easement. It addresses conservation easement provisions that would calculate and direct such appreciated value to the easement holder and that would also prevent the landowner from receiving an unwarranted windfall. Finally, it discuss a new type of conservation easement, an “ark” easement, which is intended to assist species and ecosystems in global warming caused migrations by being terminable at the easement holder’s option.

The Pennsylvania Conservation and Preservation Easements Act, the act of June 22, 2001 (P.L. 390, No. 29) (32 P.S. §§5051-5059) was enacted in its final form as House Bill 975, PN 2294. It is Pennsylvania's enabling act for conservation easements (excluding agricultural conservation easements created under the Agricultural Area Security Law.)

The goal of the Conservation Defense Insurance is to create favorable case law, avoid unfavorable case law, defend and enforce conservation easements, protect fee-owned land, encourage practices that will help prevent violations and unnecessary litigation, support good practices, and provide the confidence and capability to uphold conservation obligations forever.

Presentation focusing on Conservation Easement Drafting.

A 3-page article covering easement basics. Published by the National Association of Legal Assistants.

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. (WeConservePA guide; 5 pages)

This article briefly describes conservation easements and how they operate to protect the conservation values of land, describes the dramatic growth in the use of conservation easements over the past two and a half decades, and highlights some of the more troubling issues that have arisen as a result of the growth in the use of easements, as well as proposals for reform. The article asserts that if reforms can be successfully implemented, conservation easements can emerge from their troubled adolescence to take their appropriate adult role in the panoply of land conservation techniques, and may help lead us to a new paradigm of private property ownership.

Study examining perpetual conservation easements in light of a changing climate. What happens when a conservation easement sets rules pertaining to the treatment of a landscape on a property (i.e., coastline) that may drastically change or even disappear due to climate change?

A review of Pennsylvania judicial decisions reveals that conservation easement holders and the conservation values they uphold prevail when a dispute leads to litigation. Courts respect the text of easement documents and their conservation purposes. This guide reviews eleven cases where the interpretation or enforcement of a conservation easement was at the center of litigation. 11 pages

This article presents an overview of conservation easements designed to help practitioners reap the myriad benefits that state and federal law authorize. It addresses three distinct subjects pertaining to conservation easements; an account of the development of conservation easements; an in-depth review of conservation easement tax law and examples of potential tax benefits; and the often-altruistic client motivations that drive the conservation easement field.

This article discusses the history of conservation easements up to the present, and analyzes several barriers preventing even broader use of this valuable private land protection instrument. It alerts landowners and easement holders to several legal and policy concerns creating barriers to the effectiveness and appeal of conservation easements and investigates available and potential resolutions to these concerns.

This fact sheet answers a number of frequently asked basic questions about conservation easements.

In this article, McLaughlin outlines the support for applying charitable trust principles to perpetual conservation easements, including uniform laws, the Restatement of Property, federal tax law, and case activity on this issue to date. She cautions that perpetual land protection is not appropriate in all circumstances and recommends a more considered use of perpetual conservation easements as a land protection tool. This article explores the possible use of a number of nonperpetual conservation easements to accomplish land protection goals.

Guide outlines various conservation options for landowners, including conservation easements, donating land, and more.

Conservation transactions may involve substantial planning and execution costs. Some of those expenses clearly benefit one or the other party to the transaction. Who benefits from other expenses may be quite ambiguous. Accurate assignment of financial responsibility for these various transactional expenses has both economic and tax consequences for the landowner as well as implications for the conservation organization. 4 pp.

The documents provided here were touched on at the 10/28/16 seminar on "Drafting Easement Documents to Minimize Stewardship Pain: 21 Crucial Decisions"

In most circumstances, a conservation easement is a far better tool for conserving land than a deed restriction. This guide explains how the tools differ. [WeConservePA guide; 4 pages]

Properly delineating the boundaries of conservation easements and their different protection areas is crucial to easement stewardship and enforcement. Conservation restrictions are difficult, if not impossible, to enforce unless tied to physical locations on the ground. This guide discusses the delineation of boundaries and protection areas using physical markers, verbal descriptions, and visual depictions. [7-page WeConservePA guide]

This article examines the “dynamic conservation easement”, an easement whose terms provide land use restrictions that may change over time. It argues they are better suited to serving their unique conservation purposes and are more likely to fulfill their promise to protect the land in perpetuity than static conservation easements, whose terms provide unchanging land use restrictions.

Conservation easements can be designed to ensure sustainable forestry and safeguard important public values. This 54 page report includes a survey of three working forest conservation easements and evaluates how well each easement and its related documents ensures sustainable forestry.

As part of the process a landowner must undergo when seeking to develop land where either federally listed endangered or threatened species, or their habitat, are present, the landowner must prepare a Habitat Conservation Plan. It has become commonplace for government agencies to require the creation of conservation easements as part of these plans. This article describes the use of conservation easements in the Habitat Conservation Plan process under the Endangered Species Act and explains the complexities that arise with the enforcement of those conservation easements.

Some donations of conservation easements qualify for a federal income tax deduction; others do not.

Findley gives a brief overview of the land conservation movement in the United States and the use of conservation easements. He gives several examples of how conservation easements have successfully allowed landowners to protect their land.

In accepting a conservation easement from you, the land trust takes on the responsibility of ensuring that the land is conserved as you have agreed for all time. Fulfilling this duty requires financial resources most likely to come from you or subsequent owners of the land. (print version of WeConservePA guide, 2 pp.)

This document was developed by Brandywine Conservancy to share with prospective landowners and explain the many important legal and financial issues that a prospective easement donor should consider.

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.

Key takeaways from Terrafirma easement defense data between 2000 and 2011.

The author provides an overview of the modern law of servitudes and surveys the changes to traditional servitudes law brought about by the 2000 Restatement (Third) of Property: Servitudes. The author explains how the new Restatement simplifies and clarifies this body of law, providing greater freedom to property owners while safeguarding the public interest

United States District Court for the Western District of Virginia found that The Historic Green Springs, Inc. -- a holder of a conservation easement -- has standing under the Clean Water Act as a plaintiff regarding discharge of wastewater into a creek whose protection is a subject of the easement and an interest of the organization. (2011 U.S. Dist. LEXIS 70515)

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.

This article undertakes a critical analysis of the tax incentives that encourage the donation of conservation easements and the proposals to increase them. It concludes that a responsible approach to increasing the tax incentives is called for: Congress should increase the incentives only if some assurance can be had that the increase will be efficient, that land trusts and government agencies have the expertise and resources to appropriately screen and steward the anticipated additional easements, and that the increase will not encourage exploitation and abuse.

Conservation organizations rely on conservation easements for diverse purposes, including protection of species and natural communities, working forests, and open space. This research investigated how perpetual conservation easements incorporated property rights, responsibilities, and options for change over time in land management. Many conservation easements involved significant constraints on easement holders’ options for altering land management to achieve conservation purposes over time. This study suggests the need for greater attention to easement drafting, monitoring, and ongoing decision processes to ensure the public benefits of land conservation in changing landscapes.

This "Beyond Basics: Easements Part II" webcast delves into conservation easements, providing information on municipal land protection programs, financial benefits to landowners, steps in acquiring easements, and easement stewardship.

Achieving conservation goals in protected areas hinges on continual monitoring, enforcement, and legal defense. A national survey of land trust legal defense of conserved areas showed half of land trusts reported a legal challenge, and one-quarter of those land trusts were hindered by financial barriers in pursuing a legal challenge. Interviews with land trust staff revealed the necessary conditions for pursuing legal defense, including organizational capacity, community support, and persuasive property claims, as well as the importance of stewardship endowments and the need for greater land trust capacity and accountability.

This document is one of a series of fact sheets and reference materials produced by the Land Trust Alliance. This fact sheet addresses the benefits of co-holding partnerships.

The Model Assignment of Grant of Conservation Easement and Declaration of Covenants with Commentary is a tool for transferring conservation easements and associated responsibilities, as well as related documents and stewardship funding, to other responsible organizations.

When a mortgage precedes an easement on a property, the possibility that one day the mortgage could be foreclosed poses a threat to the continued existence of the easement unless the holder of the mortgage signs an agreement that allows the easement to survive a foreclosure. In addition, "subordination" is necessary if a tax deduction will be sought for an easement donation. This model legal document provides a vehicle to satisfy both of these issues. Be sure to download both the model and the commentary.

(print edition of ConservationTools.org guide) 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.

The Model Conservation Easement Donation Agreement helps land trusts avoid getting stuck with unreimbursed major expenses if a would-be easement donor walks away from a project. It outlines the steps to completing a project and the responsibilities of the land trust and donor. It also helps the parties avoid common misunderstandings.

This set of model documents and accompanying commentary helps local governments to formally dedicate lands to public purposes and clarify what are and aren’t appropriate uses of the land. (The materials include an option to grant a conservation easement to a qualified holder as added protection for the land.)

The Model Grant of Conservation Easement and Declaration of Covenants provides users with a state-of-the-art legal document together with an expansive commentary. Built on practitioner experiences and feedback, no easement document in the nation has benefited from more cycles of peer review. Download both the model and the commentary. The commentary explains the reasoning behind every provision, instructs on use of the model, and provides a wealth of alternative and optional provisions. The model was last updated in November 2021.

TEMPORARILY OUT OF SERVICE. DO NOT USE POSTED SPREADSHEET. Land trusts can use this tool to estimate the annual costs of stewardship for a conservation easement and the initial investment in a stewardship fund that will be needed to cover the costs. The calculator can be adapted to the needs of an individual land trust and to the specifics of a conservation easement. The guide "Costs of Conservation Easement Stewardship" (http://conservationtools.org/guides/86) explains many of the features and choices made in the calculator.

Used to secure payment of deferred contributions and other conservation commitments made by present landowners and to be paid by either them or future owners. The model offers ten basic ways to structure stewardship funding arrangements in conjunction with conservation easement projects. Download both the model and the commentary.

Little evidence exists to support the proposition that a donated conservation easement, in the absence of a charitable trust agreement, is a charitable trust in Pennsylvania; indeed, there is compelling evidence to the contrary. (Holder covenants may be used to buttress easements and do not run into the legal obstacles or suffer from the policy failings of the trust proposition.) WeConservePA guide. 11 pages.

No legal precedent exists in Pennsylvania for finding that a conservation easement acquired by a private land trust is a public trust.

Private wealth-protecting perpetual trusts and environment-protecting conservation servitudes share the problem that both are long-term property arrangements that are likely to last far longer than the ability of their creators to predict what the future will bring. Existing doctrines can be used and extended to solve many problems that are likely to arise, but more will be needed. For conservation servitudes, more attention should be given to protecting the public interest against collusive terminations by action of a developer and the servitude holder and against retention of conservation servitudes of marginal value when the land is needed for other uses of benefit to the community.

This article makes two recommendations regarding the drafting of conservation easements in the age of global warming. The first recommendation relates to drafting language that will ensure perpetuity in conservation easements where the eased land has been adversely affected by global warming. The second recommendation relates to drafting conservation easement language that addresses “latent ancillary rights” in the eased land that pertain to global warming, for example the carbon sequestration process in forested land.

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 tax benefits, additional complications arise. These problems can be avoided by obtaining an agreement from the mortgage holder appropriate to the circumstances. WeConservePA guide. 9 pages.

Conservation easements have permitted the leverage of private initiative, resources, and commitment to ensure that open space and wildlife habitats are preserved for future generations. At the same time though, private conservation easements raise public policy concerns related to the tax subsidies, the absence of public process in their creation, long-term stewardship, and flexibility to adapt conserved land to emerging needs of the community. This article examines the recent achievements and benefits of conservation easements, and suggests some reforms that might make them an even stronger vehicle for land conservation in the public interest.

Researchers from six universities across the country reached out to the land conservation community to learn how organizations are addressing climate change, if at all, and to assess the effectiveness of conservation easements in the face of a changing climate. The white paper suggests five strategies conservation organizations can follow to continue effectively protecting land in a changing climate.

McLaughlin and Machlis offer a rebuttal to Gerald Korngold’s article “Solving the Contentious Issues of Private Conservation Easements: Promoting Flexibility for the Future and Engaging the Public Land Use Process”, which presents a critique of conservation easements and a variety of suggestions for reform. They discuss five misconceptions that tend to pervade the criticism of conservation easements and result in proposals for reform that would be contrary to the public interest. They also discuss three of the primary reforms suggested in Korngold’s article and why they feel those reforms are both unnecessary and inadvisable.

State and federal governments face important choices about how to provide public access to conservation easement information, given growing concerns that the public’s substantial investment in conservation easements will be lost without comprehensive tracking over the long term. This article reflects on the public nature of conservation easements, the challenges posed by their perpetuity, and provides concrete recommendations for legislatures seeking to improve conservation easement tracking.

In Randal A. Schrimsher et ux. v. Commissioner; T.C. Memo. 2011-71; No. 945-09 (27 Mar 2011), the U.S. Tax Court determined that a claimed deduction of $705,000 for a façade easement would be denied due to a lack of a contemporaneous written acknowledgement.

Contemporary conservation easement practice has attracted many critics, based in part on well-publicized national scandals involving fraudulent donations of conservation easements for tax purposes and in part on more general concerns about the potential inefficiency of these easements. This article scrutinizes the current debate by examining various criticisms and proposals for reform of current conservation easement practice. It provides important detail on contemporary conservation easement practice, considers the interaction between contemporary practice and the abstract concerns raised in the academic debate, and offers some suggestions for reform and further study.

Part One of this report provides an introduction to some of the issues arising from conservation easements, as foretold at the time of the enactment of the federal laws that granted them tax subsidies. Part One also describes the reasons why the public has a stake in conservation easements and in their content and governance. Part Two provides a Primer on Land Trusts and Conservation Easements, including defining terms, providing historical context and reporting current trends and a preview of the future problems that they present. Part Three specifically discusses issues emanating from conservation easements and evaluates a number of alternative ways to resolve them.

This article is a rebuttal the position of Professor Julia D. Mahoney that conservation easements should not be allowed to remain in effect in perpetuity and instead they should be time limited, or perhaps not created in the first instance. The article provides a brief discussion of the historical and philosophical antecedents of real property law in the United States, an historical and legal analysis explaining how conservation easements fit within the current real property regime of the United States, and expounds upon the merits of perpetual conservation easements. The final parts of the article provide rebuttal to critiques Mahoney has provided to this work.

This restatement is not statutory law but common law, which is court made law as result of prior court opinions.

Definition of restraint on alienation from thefreedictionary.com with examples n. an attempt in a deed or will to prevent the sale or other transfer of real property either forever or for an extremely long period of time. Such a restraint on the freedom to transfer property is generally unlawful and therefore, void or voidable (can be made void if an owner objects), since a present owner should not be able to tie the hands of future generations to deal with their property. This ban on a restraint on alienation (transfer) is called "the rule against perpetuities."

This article argues that the charitable trust doctrine of cy pres should apply to donated conservation easements and, if interpreted as suggested, can provide a principled means of modifying or extinguishing easements that have ceased to provide sufficient public benefits to justify their continued enforcement (or have even arguably become detrimental to the public). It states that the landowner should be permitted to exercise dead hand control over the use of the property encumbered by the easement, but only so long as the easement continues to provide benefits to the public sufficient to justify its enforcement.

Pursuant to Senate Resolution 2007-195, this is a 78 page report on the impacts of Pennsylvania's Agricultural Conservation Easement Purchase Program.

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.

Sample agreement for co-holding an easement with another entity.

(print edition of ConservationTools.org guide) 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.

An overview of conservation easements, including the basics of what a conservation easement is, the tax benefits of donating an easement, and the easement process at Natural Lands Trust.

A guide for establishing and maintaining a conservation easement program, the handbook provides technical guidelines for drafting conservation easements-complete with case studies, sample documents and references to landmark court decisions. Originally published in 1988, this new edition draws on 17 years of land trust experience in completing easements. It includes practical how-to tips and checklists for land trust staff and board members; detailed drafting guidelines for attorneys; and many sample documents on a companion CD-ROM.

Landowners grant conservation easements to conservation organizations (“land trusts”) in perpetuity. The conservation objectives of the easement and the associated restrictions on how land can be used are intended to be permanent. Land trusts and their allies across the nation go to great lengths to ensure this permanence. 2 pages. [Print version of WeConservePA guide]

Exacted conservation easements are not donated or voluntarily sold, they are mitigation requirements for landowners seeking to fulfill goals other than land protection. This article outlines reasons why exacted conservation easements emerged and why they are such a popular tool. Because they don’t embody the freedom of contract associated with traditional conservation easements and often tie directly to regulation of property, they are a tool that directly conflicts with many of the goals that gave rise to their emergence.

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. WeConservePA guide. 15 pages.

This article explores the role land trusts and conservation easements can play in the protection of biodiversity on private lands.

Thompason scrutinizes Julia Mahoney’s article “Perpetual Restrictions on Land and the Problem of the Future”, to see whether conservation easements and other existing efforts to conserve land across generations are quite as troubling as she suggests. Thompson argues that by shifting the decision-making authority over future land uses from a single private landowner to a land trust or various segments or representatives of the public, it is less likely for the land to be developed but still leaved the ultimate decision to future generations. He explores justifications for why one generation may want to make future developments more difficult and asks how society should balance the potential benefits of perpetual conservation easements against the possible costs to future adaptability.

These article are a two part series that explore tribal use of conservation trust mechanisms to assert traditional native prerogatives on privately held lands in the United States. Part I (The Emerging Tribal Role in the Conservation Trust Movement) presents this role as an interface between two separate movements: the Native environmental sovereignty movement, aimed at protecting environmental resources located off the reservations, and the conservation trust movement created in response to the deficiencies of environmental law. Part II (Evaluating Four Models of Tribal Participation in the Conservation Trust Movement) seeks to develop the tribal role by evaluating four models of native engagement according to criteria important to both native and non-native interests.

This document was drafted by the National Conference of Commissioners on Uniform State Laws and recommended for enactment in all of the states of the union in 1981. All or portions of the Uniform Act were subsequently adopted in many states.

This 43 page publication provides an overview of conservation easements and outlines the steps involved in acquiring easements. It describes how municipalities can acquire easements or work in partnerships with land trusts on easement acquisitions and easement stewardship.

Draft for review and comment.

Who can assert claims and be heard in Pennsylvania’s courts if a dispute heats up over the management of a conservation easement?

Occasionally a land trust will seek to amend a conservation easement. More often, the owners of land subject to an easement will ask for an amendment. In any case, the issue of who can insert themselves into easement management matters can be compelling reason for the parties to agree to an amendment if the easement was created in Pennsylvania prior to June 22, 2001. WeConservePA guide. 2 pages.

How does decrease or increase in market value of land resulting from establishing or amending an easement relate to the conservation easement’s value? What do we mean when we refer to “value”? This guide explores these questions.