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JESSICA OWLEY UNIVERSITY AT BUFFALO LAW SCHOOL Conservation Easements.

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Presentation on theme: "JESSICA OWLEY UNIVERSITY AT BUFFALO LAW SCHOOL Conservation Easements."— Presentation transcript:

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2 JESSICA OWLEY UNIVERSITY AT BUFFALO LAW SCHOOL Conservation Easements

3 A Brief History of American Land Conservation Public Land Ownership Regulation Private Land Ownership Class Property Law Tools [Servitudes]  Easements  Real Covenants  Equitable Servitudes Conservation Easements

4 The Basics Nonpossessory interests Creature of State Law Enable someone to restrict a landowner’s actions on her own property beyond what the law currently requires  Someone = NGO or Government Entity Must have a conservation purpose In perpetuity Conservation Easements

5 Methods of Creation Donations  Federal tax deduction  Need to follow rules of I.R.C. 170h (including limited purposes and perpetuity) Sales Condemnations  5 th Amendment. Eminent Domain.  Cf. Regulation Exactions Court Settlements / Damage Assessments

6 The Players The Landowner The Conservation Easement Holder  Governmental Entities  Land Trusts  Tribes Third-Party Enforcer Government Entities Funders  Federal agencies (USDA)

7 UCEA §1. Definitions. "Conservation easement" means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic, or open-space values of real property, assuring its availability for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property.

8 Definition of Holder (i) a governmental body empowered to hold an interest in real property under the laws of this State or the United States; or (ii) a charitable corporation, charitable association, or charitable trust, the purposes or powers of which include retaining or protecting the natural, scenic, or open-space values of real property, assuring the availability of real property for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property.

9 2. Creation, Conveyance, Acceptance, Duration (a) Except as otherwise provided in this Act, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other easements. … (c) Except as provided in Section 3(b), a conservation easement is unlimited in duration unless the instrument creating it otherwise provides.

10 4. Validity A conservation easement is valid even though: (1) it is not appurtenant to an interest in real property; (2) it can be or has been assigned to another holder; (3) it is not of a character that has been recognized traditionally at common law; (4) it imposes a negative burden; (5) it imposes affirmative obligations upon the owner of an interest in the burdened property or upon the holder; (6) the benefit does not touch or concern real property; or (7) there is no privity of estate or of contract.

11 Benefits Flexible in formation Quick to form Perpetual Gap-filling Go beyond government action Support working landscape Minimize human/nature divide

12 The Common Law Problems Did Not Disappear Privatization Concerns Dead hand control Utility of land Undemocratic Accountability Environmental Justice Drawbacks

13 Ecological Concerns Static  Hampers Adaptive Management Piecemeal Marginal Lands Restrictions may be inadequate  Foster development  Few affirmative duties by LO or LT [no active mgmt] Drawbacks Cont.

14 Suggested Improvements Further study Holistic  Incorporate into current planning processes. Term Conservation Easements  Facilitates Adaptive Management  Acknowledges Changing Societal Needs  Increases Visibility  BUT…  This will increase transaction costs  Tax implications

15 Final Thoughts Current state of things likely to lead to underreagulate and underprotecting the environment based on a belief that conservation easements are doing the job Need to think further about what this mode of property says about property and society in general.  Libertarian reinforcement of the private landowner as the one who gets to shape society. Better off without them?  Galvanizing force  We’ll take anything we can get.


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