Drafting Pointers for Risk Balancing in Conservation

Sound conservation easement drafting ensures perpetual protection of the stated conservation purposes of protected land. This pointer addresses drafting future conservation easements assuming increases in impacts from such changes.

Ongoing communication between an easement holder and a landowner is critical to ensure that activities on and uses of the land are consistent with an easement's conservation purposes. To effectuate this goal, conservation easements often include clauses governing activities or uses permitted only when the landowner requests the express prior approval of the easement holder. This Practical Pointer contains elements to consider in drafting approval standards.

For more than three decades, many land trusts have used certain proceeds allocation language in conservation easement deeds. This allocation excludes the value of permitted improvements the landowner makes after the donation. In the last few years, the Internal Revenue Service began disallowing easements with long-used language in the proceeds clause—and courts have backed the IRS.

Please evaluate your easement template and review all relevant clauses with counsel in light of these newly developing tax controversies.

Two U.S. Court decisions raised questions regarding the permitted extent, use, size and location of building rights in deductible conservation easements, including bargain sales. The Alliance has taken steps to address this for its members, but land trusts should evaluate easement templates.

Join conservation attorneys Ellen Fred and Misti Schmidt as they tackle the complexities of commercial use language in easement drafting and stewardship.

Negotiating easement terms with a landowner attorney who is not experienced in conservation law can be a challenge. The pointer provides a sampling of easement language to orient attorneys for landowners on the variety of easement provisions which are non-negotiable. Share it with landowners and their attorneys for smoother easement negotiations.