Conservation Easement Lawyers

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 What is an Easement?

An easement is a legal concept which applies to real property. It gives an individual the right to use another individual’s property for a specific amount of time or for a specific purpose.

An easement gives an individual a legal right to pass through the property of another individual, so long as their use of the easement is consistent with any specific easement restrictions. The owner of the piece of real property retains the title to the property even though there is an easement which grants another individual a possessory interest in the land or a part of the land for a specific purpose.

Easements may given to many different types of individuals, including:

  • Neighbors;
  • Government agencies; or
  • Private parties.

Examples of easements include situations where property owners allow the usage of their private path or road for their neighbor’s navigation. Easements are commonly used for things such as:

  • Public utilities;
  • Power lines; or
  • Cable television, although the lines are often underground.

An easement is associated with real property and, as such, is governed by real property law. There are three main types of easements, including:

  • An easement in gross;
  • A prescriptive easement; and
  • An easement appurtenant.

What Are Real Property Rights?

Real property includes land as well as anything that is built upon, growing on, or affixed to the land. This definition includes things such as crops and man-made buildings.

Real property is characterized as property which does not move or which is attached to the land. Personal property, in contrast, is property which may be transferred or moved physically.

The terms real estate or premises can also be used to describe real property. In addition, real property may include the land as well as anything which is permanently located under or within the land. This may include things found under the land, such as:

  • Minerals;
  • Gasses; and
  • Oils.

Pursuant to the laws which govern real property, the land owner has a bundle of rights which are associated with owning that land. This group of rights is also known as incidents of ownership and includes the right to do the following with their land:

  • Sell;
  • Lease;
  • Exclusively possess;
  • Encumber, or mortgage; or
  • Dispose of the property by a will or other type of legal instrument.

How Do I Know if My Property Has an Easement?

As previously discussed, an easement may be granted to a variety of different agencies or individuals. If an individual wants to know the location of sewer lines or hidden power lines, the best method to determine where a public utility easement exists is to contact the local utility company.

However, the best method for determining whether or not an individual’s property has an easement is to contact the county land records office or the County Clerk’s Office where the property is located. The majority of easements are recorded or attached to the deed for the property that the individual owns.

Another place that an individual could search to determine if an easement is attached to their land is at city hall. Any easement which is recorded on the title to an individual’s property will include a reference number.

The county clerk can help the land owner use the reference number to locate the original easement document for them to make a copy of.

What Are the Different Types of Easements?

There are numerous different types of easements, depending on the property laws of a specific state. Generally, there are three main categories of easements, including:

There are also other types of easements, including:

  • Express grants;
  • Reservation easements;
  • Affirmative easements;
  • Utility easements;
  • Public easements; and,
  • Easement by estoppel.

What Is a Conservation Easement?

An easement is typically held between a landowner and a second party. The easement allows for the second party to make use of some portion of the owner’s land. The parties may or may not explicitly agree upon the easement in writing.

A conservation easement is a special type of easement where an agreement is made between the landowner and a second party which is usually either the government or a land trust, which is also referred to as a land conservation organization. With a conservation easement, the agreement is voluntary on the part of the landowner and it is formalized in writing.

The purpose of a conservation easement is to protect the land or an aspect of the land. In other words, the easement is used to conserve the land.

Because a land trust exists to preserve both the land and the natural resources in the area in which it operates, land trusts are in the business of acquiring conservation easements. A conservation easement is an easement that runs with the land.

This means that the conservation easement is tied to the land, not to the owner of the land. Therefore, if the owner sells the land, the conservation easement remains when a new owner takes ownership.

Once the terms of the conservation easement are in place, they are permanent. These types of easements may grant tax advantages to the landowner, both in terms of income tax and estate tax.

In addition, a landowner is responsible for ensuring that the terms of the easement are observed. It is important to note that granting a conservation easement may reduce the value of the property.

This is because land which has a conservation easement placed upon it cannot be developed, such as for a subdivision.

Why Grant a Conservation Easement?

A conservation easement permits an owner of land to retain the title to their property which also protects an aspect of the property. For example, a landowner may wish to:

  • Protect scenic views on the property;
  • Protect water quality;
  • Maintain the land for future farming;
  • Protect wildlife; or
  • Allow for natural forest development.

The government agency or land trust also has an interest in protecting the things noted above. The land trust agency and the landowner will enter into a formal agreement which lays out the terms of the conservation easement.

What are the Terms of a Conservation Easement?

Landowners may wish to retain certain uses of their land for themselves. If this is the case, they should be careful to include their plans for future use of their land in the agreement.

The terms of the land trust will be agreed to explicitly. These types of issues can usually be addressed in the agreement, so long as the landowner’s plans do not conflict with the purpose of the conservation.

The granting of a conservation does not make the land available to the public.

Do I Need an Attorney?

Yes, it is essential to have the assistance of a property lawyer for any conservation easement issues, questions, or concerns you may have. Conservation easement regulations laws are complex and they vary by jurisdiction.

Your attorney will be able to advise you of the laws in your jurisdiction regarding easements. In addition, your attorney can assist you with negotiating the terms of the conservation agreement with a land trust in order to ensure that your interests are protected.

Your attorney will also be able to advise you regarding all of the possible tax implications of agreeing to a conservation easement with the land trust.

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