Property Rights Foundation of America®
Founded 1994

Recent Modifications to Traditional Law

by Richard E. Hitchcock

Real Property pertains to land and all items on, above and below the land. Real Property Rights are one of the most precious and valuable of our constitutional rights. The ownership and rights to use and enjoyment of real property arise from title and ownership of the land, landlord-tenant relationships and easements. Easements are the rights to use of the lands of the owner by another person or entity. Easements are basically of two types, referred to as either "appurtenant" or "gross."

Appurtenant easements attach to and relate to the land of the so-called "dominant owner" who owns the land that is benefited by the easement. The owner of the land that serves or provides the easement is called the "servient owner." His land is "burdened" with the easement.

Appurtenant easements are typically access rights-of ways such as roads and rights of ways for overhead and underground utilities and other such uses. Easements in "gross" are typically for permission for a non-owner to harvest timber, mine minerals, extract oil, water or other items from the owners' land. Written and recorded easements are as valid and enforceable at law as is the title to the land. However, such easements and their rights are only enforceable by the dominant and servient owners.

Conservation types of easements have existed for many years and were established or granted under the general easement laws and rules. However, under those laws and rules several weaknesses existed. Under those general laws, it was necessary to have the easement "appurtenant" to other land and this is not always possible, practical or desirable. Also, the easement was only enforceable by the dominant and servient owner, thus no outside person or entity could enforce such an easement. For these reasons, among any others, in 1981 the National Conference Of Commissioners, consisting of the environmental commissioners of each state, drafted the "Uniform Conservation Act" which was approved by the American Bar Association and recommended for enactment by all of the States. This model uniform act consists of six sections, namely, 1. Definitions; 2. Creation, Conveyance, Acceptance and Duration;
3. Judicial Actions; 4. Validity; 5. Application; 6. Uniformity of Application and Construction. Many, if not all, of the States have enacted some form of Conservation Easement law.

The New York legislature enacted a Conservation Easement law in 1984 under the then existing New York Environmental statutes Article 49. The Conservation Easement Law is Title 3 under Article 49. It consists of six sections. Section 49-0301 is Declaration of policy and statement of purpose. Section 49-0303 is Definitions. Section 49-0305 is Conservation easements, certain common law rules not applicable. Section 49-0307 is Procedures for modifying or extinguishing conservation easements. Section 49-0309 is Scope of this title. Section 49-0311 is Severability.

Under the Uniform Act and the Conservation Easement laws adopted by most states, the historic legal protections for clear title to private property have been seriously undercut. There is no longer any assurance or guarantee that your land and its title will not be subject to and burdened with a conservation easement. While such easements may be intended for the public good, there have been and will continue to be many abuses.

The reasons and purposes of conservation easements are too broad and numerous to try to evaluate. However, major ones include the preservation and public enjoyment of the natural, scenic, historic, open-space, values of the land. Also to assure the availability of the land for agriculture, forest, and recreational use. Further, to protect natural resources, including air and water quality and to preserve historical, archaeological and cultural aspects of the land. Many public-spirited land owners are granting conservation easements in their lands, while others are being paid to do so. At the same time, under proper conditions, conservation easements can be obtained by the eminent domain laws. There may be tax incentives or advantages to the land owner to encourage his establishment of a conservation easement, but of course the easement holder must be able and willing to accept the easement.

Under the uniform act, a government body, a charitable corporation, charitable association, or charitable trust can be the "Holder" of the easement, essentially taking the place of the "dominant" owner under the common law of easements. There is no requirement that a conservation easement serve, attach to, or be appurtenant to any other property.

In a conservation easement, while the holder and the grantor have lawful rights to enforcement, third-party or outside-party enforcement can be granted to any other government body, charitable corporation, charitable association, or charitable trust. This makes the easement and the rights that pertain to it more readily and more easily enforceable.

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