As I prepare for next week's free ABA webinar on conservation easements, I have been thinking a bit about what advice I would give attorneys representing landowners. While I sometimes twice represented landowners in practice, I mostly think about conservation easements from the holder side. I think of my research as generally talking to land trusts and government agencies. So trying to approach things from the perspective of the landowner has been a harder exercise for me than anticipated.
One of the pointers I have for landowners is thinking carefully about who they want to convey a conservation easement to. It may feel like it doesn't matter too much which land trust (or government entity) holds the conservation easement as long as the as the landowners find the terms favorable, but I caution against that. First, with perpetual agreements it is pretty durn likely that one day an ambiguity or dispute will arise. Your conservation easement didn't contemplate potential highways for flying cars? They aren't expressly prohibited, so they must be allowed unless they conflict with the purposes of the conservation easement or the conservation values. They don't actually disturb the surface… so maybe you can still farm? are they scenic? how high off the ground do they need to be? Maybe we can easily figure this out from the CE, but it helps if the general goals of the holder align with the aims of the landowner. Do you want to give the conservation easement to The Audubon Society or to the Marin Agricultural Land Trust?