History of Conservation Easements

A BRIEF HISTORY OF CONSERVATION EASEMENTS

In the 1930s and 1940s, the National Park Service purchased land easements to protect views along a highway corridor but the term, “conservation easement” did not come into existence until the 1950s. Ironically, the federal government discontinued its purchase of scenic easements at that time but the concept of conservation easements as a land protection tool remained.

Around 1979, the IRS made donations of conservation easements to the federal government eligible for tax deduction. In 1980 Congress made the deduction a permanent part of the Internal Revenue Code. The National Conservation Easement Database contains information on conservation easements encumbering over 22 million acres but it estimates that 40 million acres are encumbered in the United States. Most of the land trusts have been created since 1984.

GOVERNMENT SUPPORT FOR CONSERVATION EASEMENTS

Conservation easements can be created by federal, state or local jurisdictions. Initial support came from the federal government but coincident with the growth of scenic highway easement legislation, states began enacting legislation that authorized the use of conservation easements to accomplish a broader range of land conservation goals. The earliest easement enabling statutes by a state were enacted by California in 1959. By 1979, 40 states had enacted some type of conservation easement enabling statute.

California’s laws defining what constitutes a conservation easement is in the State’s Civil Code Sections 815 – 816. A portion of which is quoted in Section 815.2. (a) A conservation easement is an interest in real property voluntarily created and freely transferrable in whole or in part for the purposes stated in Section 815.1 by any lawful method for the transfer of interests in real property in this state.

(b) A conservation easement shall be perpetual in duration.

(c) A conservation easement shall not be deemed personal in nature and shall constitute an interest in real property notwithstanding the fact that it may be negative in character.

(d) The particular characteristics of a conservation easement shall be those granted or specified in the instrument creating or transferring the easement.