What Is a Conservation Easement?

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

Page 5

Chapter II: What Is a

Conservation Easement?

Jessica E. Jay

A. Introduction

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

Across the nation, landowners have shown a grow ing c ommitment to lim iting 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 a ssociated with the other forms of real estate

conveyances,3 dened generally as: a le gal ag reement bet ween a la ndowner and an eligible organi zation

that restric ts future activities on the land to protect its conservation values, and lega lly as: a less-than-fee,

non-possessor y property interest in la nd, created by deed conveyance, and held by a th ird part y (usually

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

restrict ions on the use of land through negative limitation s or a rmative obligations.4 Conservation

easements can be conveyed by a landowner to either a qu alied tax-exempt 501(c)(3) land t rust or a

government ag ency.5

Although a n extremely popular land protection tool, c onservation easements t incongruously w ithin

common law real proper ty doct rines governing the use and conveyance of land.6 e t is incongruous

because conservation easements allow la ndowners to direct land uses for all time, for their own and

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

exchange for valuable tax benets.7 Conservation easements di er d ramatica lly 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, conser vation easements can be designed

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

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

terms, a nd may be directed to last in perpetuity.10 As noted in the Introduct ion to t he Reader, because

of the contra st between conservation easements a nd 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 cre ation of perpetual conservation easements

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

servitudes.12 State conservation easement enabling statutes now gu ide and govern conservation easement

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

except for North Da kota.13

As recently a s the 1970s, many states had not yet enacted conser vation ea sement enabling statutes,

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

er.14 e National C onference of Commissioners on Uniform St ate L aws set about drafting the Uni-

form Conservation E asement Ac t (UCEA) in order to serve as a model for state legislation, to prov ide

uniformity to conservation e asement enabling acts from state to state, and to ex pressly allow govern-

ment agencies a nd private orga nizations to accept less-tha n-fee interests in la nd for conservation a nd

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

statutes proc eeded to adopt portions of the Act.16 As of 2015, twenty-four states’ conservation ea sement

enabling leg islation is ba sed in par t on the UCEA, and twenty-six states possess conservation ea sement

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

conservation ea sements of perpetua l duration, while North Da kota limits its conservation e asements

to a term of 99 years, thereby makin g those conservation ea sements ineligible for federa l tax benet s,

as discussed below.18

A landow ner who donates a qual ify ing cons ervat ion easement to a qua lied holder may al so qual ify

for federal, state, or loca l tax b enets, i n accordance with those r espec tive tax laws.19 A land owner

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

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

Internal Revenue Cod e.20 Congress rst passe d the Tax R eform Act of 1976 rec ognizing conser vation

easements as deduct ible c harit able gift s in t he Int ernal Re venue Code, and ha s since passed numer-

ous federal ta x act s to provide additional ta x bene ts i ncentives for the taxp ayer-donors of p erpet ual

conser vation easements. 21

Several legal regimes g uide the creation, implementation, duration, enforcement, mo dication, and

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

Regulations for conserv ation easements donated for t ax benets, t he Restatement of Law for judge-

made common law, and the Uniform Conser vation Easement Act guidi ng statutory law.22 Each regime

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

deductible conservat ion easement gif ts, and the R egulations guide the implementation of the C ode.24

e Res tatement g uides judge-made common law, and the UCEA guide s stat utory 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.