Six Elements for a Well-Drafted Conservation Easement

Tax Professionals' Resource
January 2, 2013 — 1,603 views  
Become a Bronze Member for monthly eNewsletter, articles, and white papers.

Conservation easements are a way for property owners to protect and conserve property for future generations. A property owner can grant a conservation group or a governmental entity a conservation easement on property, reserving the right to enter upon and use the property. The easement, however, would prevent future development of the property that is outside the parameters defined in the easement.

Conservation easements are a way to prevent housing developments, shopping malls and other projects from being constructed on a particular piece of property. They allow the property owner to define how the land will be used for many generations to come.

A well-drafted easement has six major parts.

1. Whereas: The "whereas" clauses define the parties to the agreement, and outline the promises each has made to the other prior to entering in to the agreement. This section is important because it puts in writing any oral promises that may have been made.

2. Purpose: The purpose clause clearly defines the purpose of the easement -- whether it is to prevent future development or to preserve a certain species that maintains a home on the land.

3. Prohibited: Prohibited activities include anything that cannot be done with the property once the easement is signed. This often includes any steps towards commercial development of the property.

4. Permitted: Permitted activities are those things that the land owner specifically wants to allow to happen on the property. This likely includes asking the holder of the easement to maintain the natural state of the property. It could also include an affirmative action that the easement holder is to undertake, such as constructing a nature center or park on the property. The land owner may also retain certain rights in this clause and allow specific recreational activities to occur on the land, such as hiking, fishing or controlled hunting.

5. Enforcement: The land owner, and his successors, can ensure that the purpose of the easement is fulfilled. If the easement holder does not comply with the terms of the agreement, the land owner and his successors retain the right to terminate the easement.

6. Plat or Map: A well-drafted easement will include a written legal description of the property subject to the easement, as well as a plat or map drawing of the property so that it is properly identified.


Tax Professionals' Resource