Conservation easements are “non-appurtenant negative easements in gross,” granting a non-adjacent holder a restrictive encumbrance on the overall property, such as the right to prevent development.
Landowners are familiar with “positive” easements, such as those giving the holder the right to place a utility line over the other party’s land or the right to cut the timber, but less familiar with “negative” easements, which give an outside party the right to restrict the use of land.
Also familiar are “appurtenant” easements (those connected with the ownership of adjacent land), such as those allowing an adjoining property owner to have a right-of-way across neighboring land, but non-appurtenant easements, or “easements in gross” (those affecting the entire property), are generally unfamiliar to most landowners.
According to authorities, under the American common law, non-appurtenant negative easements in gross are not sustainable in a court of law. This is consistent with the allodial system of fee simple land title in this country, which contrasts with the feudal system. As the United States was settled, our law of real property was based on the theory of the allodial system, where land may be owned by an individual, subject to no proprietary control of the sovereign. Since our heritage was derived from the feudal system, vestiges of it remain, such as the power of taxation, the police power, and the state’s right to escheat (be the owner of last resort for land in the case of no heirs). Unfortunately, our common law heritage of protection of private property can be undermined by statutory law. Modern conservation easements, enacted by applying the Uniform Conservation Easement Act, a model law which is worded to nullify relevant parts of the common law to make conservation easements feasible, have not yet been challenged on the basis of inconsistency with common law.
Conservation easements are either for a limited duration of ten to thirty years (as in certain practice of the U.S. Dept. of Agriculture), or perpetual (to satisfy IRS criteria for certain tax benefits). Because of the common law against perpetuities, authorities have questioned the successful defense of perpetual conservation easements in a court of law, but this issue has not been litigated, although such perpetual encumbrances have been executed on vast acreages of land.
The terms “conservation easements” and “purchase of development rights” (PDR’s) are used for almost the same purpose, but the actual conveyances may differ. Conservation easements generally extinguish development rights, but under PDR’s, which are also easements in gross, the development rights are not necessarily extinguished, but become the property of the easement holder.
Under the common law, third party enforcement of the conservation easement would be unsustainable in court because of the basic principle of contract law that only the parties to the contract may enforce it, but state laws modeled under the Uniform Conservation Easement Act provide for this specific power to be assigned to a non-profit organization meeting requirements of the statute where written into the conservation easement.
Conservation easements are filed like deeds in the county seat because they are rights to real property. The conservation easement creates a right in favor of others over the property, with the remaining property owner the subservient residual owner.
Government bodies so empowered may extinguish a conservation easement by eminent domain, but would have to pay just compensation.
- Carol W. LaGrasse, July 20, 2002
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