I recently attended a seminar with one of the themes being conservation easements. I firmly believe that in some instances a conservation easement is a very good thing. But as a legal consultant, I also understand the ramifications and far reaching affects of a conservation easement. I would like to hear what you think.
Linebery Policy Center's Weblog 
May 1, 2008 at 11:55 am |
I must admit that i know very little about conservation easements. I would’nt be surprised if many people are in “the same boat”…could you explain what these are?
May 1, 2008 at 11:58 am |
A conservation easement is a voluntary agreement that allows a landowner to limit the type or amount of development on their property while retaining private ownership of the land. The easement is signed by the landowner, who is the easement donor, and the Conservancy, who is the party receiving the easement. The Conservancy accepts the easement with understanding that it must enforce the terms of the easement in perpetuity. After the easement is signed, it is recorded with the County Register of Deeds and applies to all future owners of the land.
Another way to visualize a conservation easement is to think of owning land as holding a bundle of sticks. Each one of these sticks represents the landowner’s right to do something with their property. The right to build a house, to extract minerals, to lease the property, pass it on to heirs, allow hunting are all rights that the landowner has. A landowner may give up certain development rights, or sticks from the bundle, associated with their property through a document called a conservation easement.
May 2, 2008 at 1:37 am |
Conservation easements, CEs, look great at the outset. What’s not to love? But, the devil is in the details, and you need to be WELL versed before you sign.
Protection of property – Thee is nothing that a landtrust can do to “save” (from who?) that can’t be done without them. The big lure is the front money and a tax credit. As with everything, there are hidden costs.
A CE creates a split estate. As the individual above referenced, the rights to your property are like a bundle of sticks, development, timber, water, mineral, gas and oil, an so on.
The split estate creates a dominant and subservient rights holder. As property owner, you are subservient.
Most CE dictate in language that is not obvious, many circumstances that a owner only finds out after they have signed rights away in perpetuity. Such as, the house can not be added on to. If it burns, you have to build on the same spot, the same size and style house, or not at all. If what you want is not spelled out, you will not be able to do it. Such as, a garden, a swimming pool, a garage, ect.
It is against federal law for the government to permit CE’s because it creates a split estate. It is only through passage of state law that landtrust are able to operate.
If you have a nice landtrust, and they are willing to work with you, an amazing thing can happen. Any other third party landtrust can step in and legally make you adhere to the letter of the CE.
The landtrust can sell your CE to any other landtrust or to the federal government.
If you meet with hard times, and can not continue to pay for the place, you would most likely put it on the market. A CE encumbering your property devalues it. You can’t do anything with it, you can find no buyer for what it is worth, you have just become a “willing” seller. The land trust can, and does offer pennies on the dollar. If the property is sold to the landtrust that holds the CE, magic is performed. They can nullify the CE, and then develop the land themselves. It happens more times then you would think.
If you own property next to someone that has a CE, it can have dire consequences to your property. If you are a farmer and spray your fields, the owner of the CE can legally make you stop, forever. There is the potential that some of your spray may drift to the CE.
A wildlife CE acts in the same way. Your neighbor has the CE, the landtrust can affect your ability to use your property, so that wildlife can flourish.
A rancher, here in Montana, took up the offer of a CE on his 4500 acre ranch. Part of a CE is a “plan” for your property. The landtrust and owner sat down and worked on a plan. The landtrust determined that there would need to be about $40,000 worth of riparian repair. The man thought that reasonable and signed on the dotted line. Three months later, the landturst came back and said they had change the plan and the sticker price had just gone up to $500,000.
The rancher couldn’t believe it, hired a lawyer and took it to court. The courts upheld the landtrust and the man, overnight, became a “willing” seller.
There are ways to protect property against subdivision and other future interests. A CE is not necessary, but they do carry an awful big carrot.
Signer beware.
May 2, 2008 at 9:22 am |
thank you Mr. Cargill, your comment has thrown a bright light on the possible ramifications of CE’s.
May 15, 2008 at 11:40 am |
Is the conservation easement the recent event that occurred in Magdalena, NM regarding the Montosa Ranch located in both Catron and Socorro, County?
May 17, 2008 at 1:56 pm |
Hi Geri:
I’m not familiar with that particular situation but i”ll do some research and find out for you, or someone else may have an idea about it.
August 4, 2008 at 3:57 pm |
There is an interesting story involving a CE in Pinal County, Arizona. It appears the County has condemned a CE encumbered property to make way for a new road. The story is written up in the Tucson Weekly at http://www.tucsonweekly.com/gbase/Currents/Content?oid=108476. I’m no legal expert but it appears to me that a landowner willing to sign over a CE ought to also bring their county and state officials to the signing table. Just because a CE is agreed upon by a landowner and a land trust, it does not necessarily overturn a county or state’s right of eminent domain. Pinal County is the fastest growing county in the USA.
August 5, 2008 at 11:04 am |
Thank you Cindy, I went to the Tucson Weekly site and downloaded the article and published it on the Weekly Sentinel online Newspaper for our readers….wow, this could change some things.
In the United States, the power of governments to take private real or personal property predates the Constitution. Even though this power is limited by the Fifth Amendment, the Fifth Amendment did not create the national government’s right to use the eminent domain power, it simply limited it to public use.
The U.S. Supreme Court has consistently upheld the rights of states to make their own definitions of public use, as is evident here, no matter the circumstances.
The Supreme Court’s decision in Kelo v. City of New London, even affirmed the municipalities authority to take private property by eminent domain, and then sell the property to a private developer. Think of the can of worms this little gem will open up!…in essence, go ahead and sign CE’s if you choose, but if we decide to develop, we will…..