Why Certain Conservation Easement Language is Non-Negotiable

This is a conservation easement deed from the Society for the accredited Protection of New Hampshire Forests.

Conservation easements are more likely to withstand legal challenge when the drafting is informed by general and state specific rules of judicial construction. This pointer includes a variety of drafting considerations to strengthen easement language.

The Model Grant of Conservation Easement and Declaration of Covenants provides users with a state-of-the-art legal document together with an expansive commentary. Built on practitioner experiences and feedback, no easement document in the nation has benefited from more cycles of peer review.

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.

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.

This document includes basic concepts of conservation easements that may help a landowner design the restrictions on the property under the conservation easement, and the rights they would like to retain under the conservation easement. It is a tool to help facilitate the education of landowners.

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.

This is a sample questionnaire to aid the accredited Foothills Land Conservancy in tailoring conservation easements to the landowner's land protection and financial goals.