What Is a Conservation Easement?

• Author: Jessica E. Jay
• Pages: 5-29

Page 5

Chapter II: WhatIs a

ConservationEasement?

Jessica E.Jay

A. Introduction

e fastest-growingmethod for protecting land in the United States is the conservation easement.1

Across the nation, landowners have shown a growing commitment to limiting future development on

their land by granting conservation easements.2 A conservation easement is an interest in a pa rcel of

land created by deeds executed with the same formalities associated with the other forms of real estate

conveyances,3 dened generally as: a legal agreement between a landowner and an eligible organization

that restricts future activities on the land to protect its conservation values, and legally as: a less-than-fee,

non-possessor y property interest in la nd, created by deed conveyance, and held by a third party (usually

a la nd trust or government entity), which, to protect certain conservation values, imposes permanent

restrictions on the use of land through negative limitations or a rmative obligations.4 Conservation

easements can be conveyed by a landowner to either a qualied tax-exempt 501(c)(3) land trust or a

government agency.5

Although an extremely popular land protection tool, conservation easements t incongruously within

common law real property doctrines governing the use and conveyance of land.6 e t is incongruous

because conservation easements allow landowners to directland uses for all time, for their own and

the public’s benet, without relinquishing ownership of the land, and under certain circumstances, in

exchange for valuable tax benets.7 Conservation easements dier dramatically from traditional servi-

tudes designed to benet adjacent property, pursuant to judge-made, common law, known as appurtenant

easements (or prots).8 By contrast to these traditional servitudes, conservation easements can be designed

to benet the public, and are not required to be appurtenant to a parcel of land or to benet a specic

landowner.9 ey also give non-landowning easement holders enforcement authority over the easement’s

terms, and may be directed to last in perpetuity.10 As noted in the Introduction to the Reader, because

of the contrast between conservation easements and traditional common law servitudes, states created

enabling statutes to authorize and overcome the otherwise signicant obstacles presented by conservation

1. P  L: C E P, P,  F 9–22 (Julie Ann Gustanski & Roderick H. Squires eds.,

2000).

2. Id.

3. Id.

4. Jessica E. Jay, When Perpetual Is Not Forever: e Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation

Easements, 36 H. E. L. R. 1 (2012).

5. P  L: C E P, P,  F, supra note 1.

6. Jay, supra note 4.

7. Id.

8. Id.

9. Id.

10. Id.

Editors’ Note: We omitted most citations in the excerpted works for bre vity and reada bility. Asterisks were used to indicate delete d

portions of the tex t. And a “leaf ” icon was placed betwee n each excerpt.

Page 6 A Changing Landscape: The Conservation Easement Reader

easements’ non-appurtenant and perpetual nature under the common law.11 Most states had enacted con-

servation easement statutes by the early 1990s to enable the creation of perpetual conservation easements

in what would have otherwise been hostile treatment under common law requirements for traditional

servitudes.12 State conservation easement enabling statutes now guide and govern conservation easement

creation, duration, denition, purposes, modication, enforcement, and termination within every state

except for North Da kota.13

As recently as the 1970s, many states had not yet enacted conservation ea sement enabling statutes,

and the statutes that d id exist to guide conservation easements varied widely from one state to anoth-

er.14 e National Conference of Commissioners on Uniform State Laws set about drafting the Uni-

form Conservation Easement Act (UCEA) in order to serve as a model for state legislation, to provide

uniformity to conservation easement enabling acts from state to state, and to expressly allow govern-

ment agencies and private organizations to accept less-than-fee interests in land for conservation a nd

preservat ion purposes.15 e Commissioners nalized the UCE A in 1981, and states without enabling

statutes proceeded to adopt portions of the Act.16 As of 2015, twenty-four states’ conservation easement

enabling legislation is based in part on the UCEA, and twenty-six states possess conservation easement

enabling statutes that predate or adopt no elements of the UCEA.17 In total, forty-nine states enable

conservation ea sements of perpetual duration, while North Da kota limits its conservation easements

to a term of 99 years, thereby making those conservation ea sements ineligible for federa l tax benets,

as discussed below.18

A landowner who donates a qualifying conservat ion easement to a qualied holder may also qualify

for federal, state, or loca l tax benets, in accordance with those respective tax laws.19 A landowner

who seeks federal tax benets for a conser vation easement donation, for example, must comply with

federa l tax laws guiding the deductibility of ch aritable conservat ion contributions as set out in the

Internal Revenue Code.20 Congress rst passed the Tax R eform Act of 1976 rec ognizing conser vation

easements as deductible charitable gift s in the Internal Revenue Code, and ha s since passed numer-

ous federal tax act s to provide additional tax benets incentives for the taxpayer-donors of perpetual

conser vation easements. 21

Several legal regimes guide the creation, implementation, duration, enforcement, modication, and

termination of conservation easements, including the Interna l Revenue Code and attendant Treasury

Regulations for conservation easements donated for tax benets, the Restatement of Law for judge-

made common law, and the Uniform Conservation Easement Act guiding statutory law.22 Each regime

serves a dierent purpose, with dierent goals and foci.23 e Code outlines requirements for tax-

deductible conservation easement gifts, and the Regulations guide the implementation of the Code.24

e Restatement guides judge-made common law, and the UCEA guides statutory law, for conserva-

tion easements.25

11. E B  K M P, T C E H7–25 (2d ed. 2005), in J E. J, L

C   E L  C E(forthcoming April 2015) (on le with author, Land Trust Alliance,

& Vermont Law School).

12. Id.

13. Id.

14. Id.

15. Id.

16. Id.

17. Id.

18. Id.

19. Id.

20. Id.

21. B  M P, supra note 11.

22. Jay, supra note 4.

23. Id.

24. Id.

25. Id.