A conservation easement is a voluntarily entered legal agreement between a landowner and a conservation organisation or public agency that restricts uses of the land to protect its conservation values. The conservation easement transfers the power to the easement holder to exercise certain use rights linked to the property. This transfer of rights becomes part of the property title, meaning that it remains valid when ownership of the property changes (the easement “runs with the land”).
Conservation easements (also called conservation covenants, conservation servitudes, or conservation restrictions) are a tool of real property law. They grant the power to a public authority or a qualified conservation organisation (often called land trust) to permanently limit uses on properties not in their ownership as has been agreed in the agreement. These land-use rights are otherwise held by the landowner. Conservation easements thus function similarly to regulatory restrictions on land use but result from direct contractual agree-ments between two parties. Conservation easements are usually in gross, meaning they benefit a natural or legal person. If conservation easements are of unlimited duration, they are binding for the present and all future owners of the property. Although they can be changed and revoked under certain conditions, they are normally designed to remain effec-tive in perpetuity. A conservation easement on a property is recorded in its title, which means that it has to be registered by a notary at the land registry office.
Conservation easements are very heterogeneous in form and scope. In their simplest form, they merely state that a property (or part of it) is dedicated to conservation purposes. This implies that all actions that run counter to this objective are prohibited. More sophisticated easements specify what natural features (habitats, species, scenery etc.) of the property are protected, what may or may not be allowed on the property, and by whom the allowed activities may be carried out. In their most comprehensive form, they can resemble de-tailed management plans, or they refer to planning documents that are not registered with the deed and that can thus be updated more easily.
Although no explicit legal obstacle exists for their use in most member states, conservation easements are not yet as widely used in the EU. The provision of most EU funding pro-grammes (e.g. LIFE+, RDP) stating that land acquisition for conservation is only eligible if the investment is adequately ensured in the long-term through adequate legal safeguards has led to an increased use of easements for conservation purposes in some member states. However, conservation-related entries in the property title, as described above, rarely go beyond general language dedicating the land to conservation purposes.
- Contracting parties: a conservation easement is established by an agreement between a landowner and someone who is interested in the conservation of the property and is eligible to hold a conservation easement (normally a conservation organisation or a public body).
- The contractual agreement to establish a conservation easement is voluntary on both sides.
- The conservation easement is registered in the title of the property. It has to be recorded at the land register in order to be valid.
- The conservation easement is a tool specifically designed for conservation purposes, which means that its scope is tailored to the conservation value and objectives of a specific property.
- A conservation easement “runs with the land”, i.e. it burdens the current landowners and the successors in title. Contrary to covenants or easements benefiting a neighbouring property (“appurtenant easements” in US law), a conservation easement benefits a legal person (“easement in gross”). It thus does not necessitate the benefit to a neighbouring property to be established.
- Unless explicitly specified, conservation easement usually last in perpetuity or many years.
- Landowner: is willing to achieve conservation purposes on his/her property by transferring use rights linked to the property to a third party
- Easement holder: is willing to protect natural values by receiving the power to exercise, enforce, restrict use rights linked to a property
- Land registry: records the conservation easement as part of the property title
- Notary: documents the signing of the contract that establishes the easement and makes sure all administrative steps are taken
Rights and obligations
The easement holder has the right to enforce the terms of the easement. This includes making sure that all land use stipulations are respected by parties and taking (legal) action in case the terms of the easement are violated. The easement holder can have the obligation to monitor and report whether the terms of the easement have been respected. The landowner has the obligation to respect the terms of the easement. Besides the land use stipulations, this can include granting access to (part of) the property for the easement holder or the public. The contract can be ended after the duration of the easement if it is not in perpetuity or by mutual agreement of the parties.
Duration of rights
Unless explicitly specified, conservation easements usually last in perpetuity or temporary, it depends on the specific civil law in each country.
Legal basis exists in various forms in all EU member states as part of the respective property law, which in all EU member states is part of the civil code. For more information see the report on The Use of Conservation Easements in the European Union.
Purpose and application
The purpose and application of conservation easements typically is species or habitat conservation or habitat restoration. Conservation easements provide a valuable alternative to land purchase when restricting only some of the use rights linked to the property is sufficient to achieve the conservation target or when the landowner is unwilling to sell.
Economic transactions and fiscality
Easements can be, but often are not, cheaper than purchasing land in fee. That is due to the comparatively high transactional costs. Setting up an easement can create transactional costs: the costs of setting up the ease-ment itself, including costs and time investment for negotiations, the environmental as-sessment that should be done beforehand, legal advice, notary costs and fees between other costs. Then there are costs associated with the potential compensation for the land-owner. These costs are not necessarily borne by the easement holder but can come from public budgets in the form of tax deductions or funding programmes. After the registration of the easement, there may be costs associated to the monitoring and enforcement of the agreement.
Opportunities for landowners
- Easements provide help preserve the environmental value of the land for future generations
- Easements provide continued private ownership and use of the protected land
- Easements are tailored to the circumstances. They only regulate those land uses relevant for the conservation purpose.
- The value of the rights given to the easement may be compensated for in the form of tax incentives or one-off payments
- The agreement can be adapted to a specific (part of the) land
Opportunities for conservation NGOs
- For conservation organisations, conservation easements can be used as an alternative to the acquisition of land. This can be effective whenever a landowner agrees to usually permanently protect his/her property but does not want to sell the land.
- Conservation easements provide an additional legal certainty as they are not linked to the landowner but to the property.
- Conservation easements can be used as safeguards for donors when conservation organisations purchase and/or restore land with external funding, be it from conservation programmes or offsetting schemes.
- The agreement can be adapted to each case.
- Flexible/balanced use of land where only those activities need to be restricted to assure the protection targets are reached
- Lack of implementation practice and knowledge for testing and wider application of the tool.
- Legal uncertainty
- Legislation on country level
- Lack of court cases challenging the easement
- Currently still missing financial incentives in many EU countries
- It can potentially have compatibility with third party right, like rights related to hunting reserves and pre-existing leases but will depend on national legislation.