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What is an Environmental Easement?

An environmental easement is a voluntary or negotiated, legal agreement between a landowner and a Conservation Organization / Land Trust that permanently limits uses of the land in order to protect its conservation values. It allows you to continue to own and use your land and to sell it or pass it on to heirs.

When you donate a environmental easement to a Conservation Organization / Land Trust, you give up some of the rights associated with the land. For example, you might give up the right to build additional structures, while retaining the right to grow crops. Future owners also will be bound by the easement's terms. The Conservation Organization / Land Trust is responsible for making sure the easement's terms are followed on a long-term basis.

Environmental easements offer great flexibility. An easement on property containing rare wildlife habitat might prohibit any development, for example, while one on a farm might allow continued farming and the building of additional agricultural structures. An easement may apply to just a portion of the property and need not require public access.

A landowner sometimes sells an environmental easement, but internationally usually easements are donated. Perhaps most important, an environmental easement can be essential for passing land on to the next generation. By removing the land's development potential, the easement may lower its market value although protect it forever. Whether the easement is donated during life or by will, it can make a critical difference in the heirs' ability to keep the land intact.

Why should I grant an environmental easement to a Conservation Organization / Land Trust?

People grant an environmental easement because they love their open space land, and want to protect their land from inappropriate development while keeping their private ownership of the property. By granting an environmental easement to a conservation organization such as the Kenya Land Conservation Trust, a landowner can assure that the property will be protected forever and remain as a permanent open space, regardless of who owns the land in the future.

Are environmental easements popular?

They are very popular throughout the world. For example, in the USA between 2000 and 2005, the amount of land protected by Conservation Organizations / Land Trusts using easements doubled to 6.2 million acres. Landowners have found that environmental easements can be flexible tools, and yet provide a permanent guarantee that the land won't ever be developed. Environmental easements are used to protect all types of land, including coastlines; farm and ranch land; historical or cultural landscapes; scenic views; streams and rivers; wetlands; wildlife areas; and working forests.

What activities are allowed on land protected by an environmental easement?

The activities allowed by an easement depend on the landowner's wishes and the characteristics of the property. In some instances, no further development is allowed on the land. In other circumstances, some additional development is allowed, but the amount and type of development is less than would otherwise be allowed. Environmental easements may be designed to cover all or only a portion of a property. Every easement is unique, tailored to a particular landowner's goals and their land.

Can the landowner still sell or give the property away?

The landowner continues to own the property after executing an easement. Therefore, the owner can sell, give or lease the property, as before. However, all future owners assume ownership of the property subject to the conditions of the easement.

How long does an environmental easement last?

Most easements "run with the land," binding the original owner and all subsequent owners to the easement's restrictions. The easement is recorded with the Lands Control Board after a court proceeding so that all future owners and lenders will learn about the restrictions when they obtain title reports.

Does the public have a right of access to easement-protected property?

The public does not have access to property protected by an easement unless the original landowner who grants the easement specifically allows it. Most easement donors do not want, and therefore do not allow, public access to their property.

What are a Conservation Organization / Land Trust's responsibilities regarding environmental easements?

The Conservation Organization / Land Trust is responsible for enforcing the restrictions that the easement document spells out. Therefore, the Conservation Organization / Land Trust monitors the property on a regular basis - typically once a year or more often as required - to determine that the property remains in the condition prescribed by the easement document.

The Conservation Organization / Land Trust maintains written records of these monitoring visits, which also provides the landowner a chance to keep in touch with the Conservation Organization / Land Trust.

Many Conservation Organization / Land Trusts establish endowments to provide for long-term stewardship of the easements they hold.

Where possible, the Conservation Organization / Land Trust asks easement donors to make a financial contribution to the Endowment Fund. This fund ensures long-term monitoring and enforcement of every easement the received.

Who owns and manages easement-protected land?

The landowner retains full rights to control and manage their property within the limits of the easement. The landowner continues to bear all costs and liabilities related to the ownership and maintenance of the property. The trust monitors the property to ensure compliance with the easement's terms, but it has no other management responsibilities and exercises no direct control over other activities on the land.

Does the easement have to cover all the landowner’s property?

Not necessarily, some easements only cover a portion of the landowner's property. Again, it depends on the landowner's wishes. For example, if someone owns 200 acres, of which 100 acres are wetlands, the landowner may decide to restrict development only to these 100 acres. The remaining 100 acres would not be covered or affected by the easement.

What kind of land can be protected by environmental easements?

Ideally, the property should have “significant” conservation values which are outlined in the criteria established by the trust. This includes but not limited to grasslands, forests, wetlands, endangered species habitat, beaches, scenic areas and more. At the invitation of the landowner trust staff can evaluate the property to determine whether it meets these criteria.

Published in Ogo Law Insights

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