Judicial Interpretation of Conservation Easements

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.

As the transition to a clean energy system accelerates and renewable energy development pressures increase, land trusts are facing, with far greater frequency, questions regarding renewable energy and conservation easements. This document outlines key considerations when drafting easements and for responding to landowner requests for siting renewable energy on existing easements.

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.

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.

This pointer offers land trusts tips for evaluating siting renewables and transmission infrastructure on land that they own.

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.

Provides guidance on which commercial activities and events the Maryland Environmental Trust will consider on its properties.

Under the common law doctrine of merger, an easement will be extinguished when the easement holder becomes the fee title owner of the property subject to the easement. The applicability of the doctrine of merger to conservation easements, however, is a matter of state law and will vary by jurisdiction.

These drafting pointers will help you consider the minimum criteria for a sound forestry clause, whether the landowner manages the conserved land for timber income or whether forest management activities support personal use goals, such as firewood production, habitat improvement or recreation.

We prepared this summary of the basic results of conservation tax cases to aid land trusts, but not to give tax, legal or other advice. To aid digestion, we distilled the cases to only their essential points and removed all nuance. Obtain legal counsel to apply these general observations to specific cases.