E.
C.
D.
Conservation Easements:
A.
B.
Conservation Easement (CE) Defined
A voluntary agreement between a landowner and a land trust / public agency which permanently restricts certain development and uses of the land. This agreement can be conveyed through donation or sale and (typically) “runs with the land” through all future ownerships.
CE vs. Fee Ownership
- Where desired use of land is best accomplished by landowner
- LT may not be staffed or financed for perpetual ownership
- Highly managed (public access) may be best owned by LT
Perpetuity of Easement
- IRS requirement for donated easement (where landowner seeks tax deduction)
- Required by funding sources to protect investment
- Avoids future re-negotiation
Extinguishment of Easement
- Mortgage Foreclosure
- Subordination Agreement
- Condemnation (eminent domain)
- Tax sale
- Doctrine of “Changed Conditions”
- Mutual agreement of easement parties
Easement Elements
1) Preamble / Recitals / “Whereas” clauses
- background information
- not enforceable
2)
3)
Conveyance Clause
- Identification of Parties: Grantor (landowner) / Grantee(easement holder)
- Assignment
- Description of “Protected Property”
- Legal transfer of property interest
- eg “conveyance of all development rights except those specifically reserved by the Grantor”
- Establishment of perpetual conveyance
- In accordance with jurisdictional (eg State of Vermont) requirements
- “Consideration” ($10.00)
- Statutory authority for conservation easement (if existing in the particular jurisdiction)
Statement of Purposes
- Prioritized Conservation Values
- IRS requirement
- Standard for:
- Approval criteria
identified
- Violation / Enforcement basis

G.
F.
4)
5)
6)
Restricted Uses (by Grantor)
Permitted Uses (by Grantor)
- If not permitted, not allowed (most CE’s)
- Approval Procedures:
- Written notification
- “not unreasonably withheld” (presumed OK)
- Sole Discretion (no presumption)
- Standard of Review
- Reference to “Purposes…”
Permitted Uses (by Grantee)
- Access for management purposes (if appropriate)
7) Site Specific Clauses
- Reserved house sites
- Subdivision of property
- “Farmstead Complex”
- Public Access / Trail Easement
- Habitat / natural area
- Historic Preservation
- Viewshed
- Gravel Extraction
- Home occupations / Accessory uses
8) Enforcement
- Right of access to Grantee for Inspection
- Right to correct violations at Grantors expense
- Right to legal intervention / Injunctive relief
- Arbitration (as alternative to litigation)
9) Miscellaneous provisions
- Cost of approvals
- Grantee assignment to “qualified organization”
- Allocation of proceeds of condemnation
Easement Issues
1)
2)
3)
4)
5)
Amendments
Approvals
Stewardship Endowments (cover cost of monitoring and enforcement)
Future landowners / notification
Enforcement
- Litigation costs
- Easement complexity
Easement Negotiation / Drafting Procedure
1)
2)
3)
4)
5)
6)
7)
8)
Landowner Contact / Site Inspection
Determination of Conservation Values and priorities
Negotiation of easement terms
Title search
Baseline Documentation
Closing
Stewardship Plan / Endowment
Long term management / monitoring