The article by Jon Christensen about conservation
easements was very interesting, but failed to mention a few
important points about easements (HCN, 3/29/04: Who will take over
the ranch?).
One, conservation easements are made in
perpetuity. Forever is a long time. If you need a heart transplant
in 10 years, or college tuition for the kids, you cannot sell some
of the land to a developer to get the money. That option has
forever been forfeited.
Two, there is nothing in the
easement to keep it from becoming more restrictive in the future.
So, for instance, a land trust could decide that grazing or farming
that were originally allowed in the easement, must cease now. The
current land trust may never consider such an action, but
conservation easements can be reassigned, or there could be a
“hostile takeover” of a land trust in the future.
Long
story short, if you must sell a conservation easement on your land,
those who work with them regularly recommend you do the following:
draft the easement so it is the servient, not the dominant estate;
include a “no assignment clause” so the trust cannot assign the
easement to someone else without your consent; do not allow a “no
use inconsistent with the conservation easement purpose” clause in
the easement (accepting the clause allows the trust to claim
grazing or farming are “inconsistent with the purpose of the
easement” and must cease); and give a right-of-way easement to
yourself, your children, and heirs.
If a land trust will
not accommodate the above clauses I would be very suspicious of
their intent.
Jim Gerber
St.
Anthony, Idaho
This article appeared in the print edition of the magazine with the headline Caveats on easements.
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