Timing a conservation easement transaction can be critical in meeting a landowner’s needs or in structuring a real estate sale. If we are to accept an easement, we must participate in developing its terms. The general steps involved in placing an easement on a property are outlined below. It is best to contact us as early as possible when considering easements.
The first step is for our conservation staff to visit the property, discuss the landowner’s preservation and future development options, and help the landowner determine their conservation goals. Our staff also assesses whether the property meets our criteria for acceptance of conservation easements.
Land Planning Analysis
If the landowner wishes to explore limited development options, we will assist in determining what type of development could be considered without compromising the conservation objectives required for us to accept the easement donation.
We next prepare a draft legal document that reflects the agreement reached between us and the landowner. The document spells out the development rights to be restricted and the use rights to be retained by the landowner.
Once an easement document is agreed upon by both us and the landowner, it is reviewed by each party’s attorneys. We also undertake a Last Owner Lien and Title Search on the property, prior to final review and acceptance by our Board of Directors or Executive Committee.
Documenting the Easement
We visit the property to photograph its condition at the time of the easement transaction. The photographs, along with maps and other information, are part of the “baseline documentation” for the property. These records will enable us to determine whether any significant alterations have occurred in the future.
Executing and Recording the Final Agreement
The finalized conservation easement is signed and notarized by both parties and recorded with the County Clerk. In some cases, we can hold the easement in escrow until adjacent landowners place similar restrictions on their land. The recording of the easement can be postponed until several neighbors act together to place easements.
We request a contribution to our Conservation Easement Stewardship Fund from conservation easement donors to cover the costs of documenting the easement, annual monitoring, and possible enforcement in the future (see below). The amount requested is usually a small percentage of the value of the easement. Endowments can be considered a landowner’s insurance policy to guarantee the long-term enforcement of the easement, while also being tax-deductible.
Monitoring and Enforcement
After the easement has been recorded, we conduct an annual monitoring visit to the property to ensure the easement agreement is being upheld. If new structures are permitted under the easement, we review plans and monitor construction for compliance with the plans. If a violation occurs, we require voluntary correction, and if necessary, take legal action to enforce the easement.