Conservation Easements in Colorado
| Publication year | 1976 |
| Pages | 1264 |
| Citation | Vol. 5 No. 9 Pg. 1264 |
1976, September, Pg. 1264. Conservation Easements in Colorado
On May 13, 1976, Governor Lamm added Colorado to the growing list of states that give express statutory recognition to conservation easements in gross when he approved Senate Bill No. 59. This legislation received little public attention during its consideration by the General Assembly, but its enactment marks an important milestone in Colorado real property law. Not only does it give a firm statutory basis to a significant conservation concept, but it also gives imaginative Colorado landowners and attorneys a valuable new tool in tax and estate planning.
A conservation easement in gross is defined as
a right in the owner of the easement to prohibit or require, a limitation upon, or an obligation to perform, acts on or with respect to a land or water area or air space above the land or water owned by the grantor appropriate to the retaining or maintaining of such land, water, or air space, including improvements, predominantly in a natural, scenic, or open condition, or for wildlife habitat, or for agricultural, horticultural, recreational, forest, or other use or condition consistent with the protection of open land having wholesome environmental quality or life-sustaining ecological diversity, or appropriate to the conservation and preservation of buildings, sites, or structures having historical, architectural, or cultural interest or value.(fn1)
It "is an interest in real property freely transferable in whole or in part. . . by any lawful method for the transfer of interests in real property in this state,"(fn2) "shall not be deemed personal in nature and shall constitute an interest in real property notwithstanding that it may be negative in character,"(fn3) and "shall be perpetual unless otherwise stated in the instrument creating it."(fn4)
Under the traditional common law rules in the United States, a conservation easement in gross generally was considered to be a mere personal right of the grantee which was not transferable and was extinguished by the grantee's death. This was particularly true if the easement was non-commercial and negative in character.(fn5) There are no Colorado cases either expressly accepting or expressly rejecting the traditional rules, but there are several references in the Colorado Revised Statutes 1973, to
easements as interests in land and water. The state Board of Parks and Outdoor Recreation, for example, is authorized to "Acquire by gift, transfer, lease, purchase, or long-term operating agreement such land and water, or interest in land and water, as the director. . . deems necessary, suitable, or proper for parks and outdoor recreation purposes or for the preservation or conservation of sites, scenes, open space, and vistas of public interest," and the term "interest in land and water" is defined to include easements.(fn6) Similar authority has been granted to cities,(fn7) towns,(fn8) metropolitan recreation districts,(fn9) and recreational facilities districts.(fn10) These references imply a general recognition of conservation easements as fully enforceable interests in land and water in Colorado, but they do not provide the express recognition necessary to use such easements effectively in tax and estate planning.(fn11) "No provision of this article shall be construed to mean that conservation easements in gross were not lawful estates in land prior to July 1, 1976."(fn12)
"A conservation easement in gross may only be created by the record owners of the surface of the land by a deed or other instrument of conveyance specifically stating the intention of the grantor to create such an easement under this article."(fn13) It "may only be created through a grant to a governmental entity or to a charitable organization exempt under section 501(c)(3) of the Internal Revenue Code, which organization was created at least two years prior to receipt of the conservation easement."(fn14) The easement "is void if, at the time it is granted, a substantial purpose fulfilled by its creation is already required by an existing statute, ordinance, rule, or regulation of the federal government, the state of Colorado, or a political subdivision of the state of Colorado."(fn15)
"Conservation easements relating to historical, architectural, or cultural significance may only be applied to buildings, sites or structures when the state historical society of Colorado certifies that such a building, site, or structure is listed in the national register of historic places or the state register of historic properties or has been designated as a landmark by a local government or landmarks commission under the provisions of the ordinances of the locality involved."(fn16)
"Instruments creating, assigning, or otherwise transferring conservation easements in gross must be recorded upon the public records affecting the ownership of real property in order to be valid and shall be subject in all respects to the laws relating to such recordation."(fn17)
It is unlikely that any common law conveyances of conservation easements in Colorado prior to enactment of Senate Bill No. 59 would completely conform to the new statutory requirements. The bill avoids any negative impact on these transactions by providing "No interest in real property cognizable under the statutes, common law, or custom in effect in this state prior to July 1, 1976. . . shall be impaired, invalidated, or in any way adversely affected by reason of any provision of this article."(fn18) The prudent grantee, however...
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