Land ownership carries with it a bundle of rights — the right to occupy, lease, sell, develop, construct buildings, farm, restrict access or harvest timber, among others. Learn what a conservation easement is and how it can be useful for you. Please refer to our land conservation tools for more general information.
Easements are flexible legal instruments that can be tailored to the particular piece of property, wishes of the landowners, and purpose of the grantee. Conservation easements can be designed to accomplish specific objectives, such as to protect habitat for an individual endangered species; or it can be designed more broadly to protect farmland, open space, views or land that buffers more sensitive core conservation areas. Easements can also be tailored to meet a landowner’s needs, such as the need to build a house in the future for a daughter’s family or the need to continue to derive income from the land through ranching where those uses are consistent with the purposes of the easement holder and/or funders. Conservation easements do not automatically provide for public access unless so specified in an easement.
The core provisions of any conservation easement are the list of activities that are allowed within the easement premises, the list of activities that are prohibited, and the rights given to the easement holder. Most easements restrict uses that would degrade the property’s condition relative to a specific conservation purpose. In some instances, easements require a landowner to take new actions to protect land and water resources; such as fencing a stream to keep livestock out or changing harvest methods to reduce sedimentation. While even less common, easements can also give the easement holder the right to restore and manage the property
Most easements “run with the land,” remaining with the property even if it is sold or passed on to heirs, thus binding in perpetuity the original owner and all subsequent owners to the easement’s conditions. However, easements can be limited to a specific term of years and/or only be transferable with the approval of the landowner.
In Oregon, conservation easements can be held by non-profit land trusts, federal, state and local agencies; and tribes (ORS 271-715 through 271.795). Most typically, conservation easements are held by Land Trusts. From the grantees’ perspective, an easement may be preferable to outright acquisition for three reasons: 1) they can cost less per acre, 2) reduce the management responsibilities of the grantee, and/or 3) they can be applied to a portion of a property rather than an entire property. In other situations, easements may be the only option a landowner is interested in considering.
To determine the potential benefits of a given easement a series of questions should be asked about the property and conservation purposes, the legal rights and restrictions, and the organization or agency entering into the easement.
The rights and restrictions in easements can result in one of three potential levels of conservation benefit:
To enforce an easement, clear terms and objectives are important. It is common practice to complete a baseline report that documents the condition of the property at the time the conservation easement is entered into. Changes in the condition of the property over time can then be measured against the information in the baseline report. The terms of an easement must include a provision for how the grantee will notify the grantor of a violation, how much time the grantor has to remedy the violation, and what actions will be taken if corrective measures are not completed. If there is a dispute between the grantor and grantee over an alleged violation, the grantee must be prepared to resolve the issue with the landowner either through mediation, arbitration, or litigation. The specific process for addressing disputes should be covered in the terms of an easement.
For more information, contact us.
Key References on Conservation Easements:
ORS Statutes 271-715 through 271.795 Conservation Easements
Barrett, T.S. and S. Nagel 1996. Model Conservation Easement and Historic Preservation Easement 1996. Land Trust Alliance
Diehl, J. and T.S. Barrett. 1988. The Conservation Easement Handbook. The Land Trust Alliance and Trust for Public Land.
Gustanski, J.A. and R.H. Squires. 2000. Protecting the Land Conservation Easements Past, Present, and Future. Island Press.
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