Caveats on easements

  The article by Jon Christensen about conservation easements was very interesting, but failed to mention a few important points about easements (HCN, 3/29/04: Who will take over the ranch?).

One, conservation easements are made in perpetuity. Forever is a long time. If you need a heart transplant in 10 years, or college tuition for the kids, you cannot sell some of the land to a developer to get the money. That option has forever been forfeited.

Two, there is nothing in the easement to keep it from becoming more restrictive in the future. So, for instance, a land trust could decide that grazing or farming that were originally allowed in the easement, must cease now. The current land trust may never consider such an action, but conservation easements can be reassigned, or there could be a "hostile takeover" of a land trust in the future.

Long story short, if you must sell a conservation easement on your land, those who work with them regularly recommend you do the following: draft the easement so it is the servient, not the dominant estate; include a "no assignment clause" so the trust cannot assign the easement to someone else without your consent; do not allow a "no use inconsistent with the conservation easement purpose" clause in the easement (accepting the clause allows the trust to claim grazing or farming are "inconsistent with the purpose of the easement" and must cease); and give a right-of-way easement to yourself, your children, and heirs.

If a land trust will not accommodate the above clauses I would be very suspicious of their intent.

Jim Gerber
St. Anthony, Idaho

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