Don't be afraid of easements
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I have worked for a rural California land trust for
five years, and wanted to respond to Mr. Gerber’s comments in
his letter to the editor, "Caveats on easements" (HCN, 4/26/04:
Caveats on easements).
I wholeheartedly agree with his suggestion that landowners think long and hard before placing conservation easements on their property. Conservation easements are designed to be permanent, and it is no minor decision for a family to encumber their property with one.
However, Mr. Gerber implied that rogue land trusts could easily slap further restrictions on a parcel after the conservation easement is in place. This is not true. A conservation easement can only be amended with the consent of the landowner — whether it is the original easement donor or any future landowner.
Second, the standard conservation easement language is critical — and has been developed over 20 years by teams of property, tax and real estate attorneys and land-trust practitioners from across the country. If you include a "no assignment" clause, then there is no provision for the future, should the original land trust become a new entity (e.g., if it merges with another land trust) or goes out of business entirely — and you lose assurance that your easement will be enforced in perpetuity.
Ultimately, land trusts are community-based organizations. Staff, trustees, volunteers, members and financial supporters are neighbors with those who have conservation easements on their land. The integrity of the organization rests with the trust that is built between the organization and the community. Land trusts would not last long if their goal was to steal property rights. If any land trust does become too "rogue," the state attorney general can step in to take legal action against the land trust. Conservation easements are not a panacea, and may not meet every landowner’s needs. But I would hope that if Mr. Gerber gave his local land trust another chance to address his fears, or talked to neighbors who had conservation easements on their land, he would find most of his fears unfounded.
Vanessa Johnson
Napa, California
I wholeheartedly agree with his suggestion that landowners think long and hard before placing conservation easements on their property. Conservation easements are designed to be permanent, and it is no minor decision for a family to encumber their property with one.
However, Mr. Gerber implied that rogue land trusts could easily slap further restrictions on a parcel after the conservation easement is in place. This is not true. A conservation easement can only be amended with the consent of the landowner — whether it is the original easement donor or any future landowner.
Second, the standard conservation easement language is critical — and has been developed over 20 years by teams of property, tax and real estate attorneys and land-trust practitioners from across the country. If you include a "no assignment" clause, then there is no provision for the future, should the original land trust become a new entity (e.g., if it merges with another land trust) or goes out of business entirely — and you lose assurance that your easement will be enforced in perpetuity.
Ultimately, land trusts are community-based organizations. Staff, trustees, volunteers, members and financial supporters are neighbors with those who have conservation easements on their land. The integrity of the organization rests with the trust that is built between the organization and the community. Land trusts would not last long if their goal was to steal property rights. If any land trust does become too "rogue," the state attorney general can step in to take legal action against the land trust. Conservation easements are not a panacea, and may not meet every landowner’s needs. But I would hope that if Mr. Gerber gave his local land trust another chance to address his fears, or talked to neighbors who had conservation easements on their land, he would find most of his fears unfounded.
Vanessa Johnson
Napa, California
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