How to Write a Conservation Easement


Public policy:  The conservation easement should provide a statement of state and local public policies the conservation easement supports.

Purpose of a conservation easement:  The conservation easement must contain a definition of purpose. The defined purpose of the grant and conservation easement must be consistent and identify the resources and conservation values to be protected.

Conservation values:  The conservation easement should contain a definition and description of the resources and conservation values protected by the easement. The description and definition should be consistent with the Baseline Conditions Report.  The definition of the conservation values should include sufficient detail that explains habitat types, particular species or resources identified for protection, such as wildlife, nature of the working landscape, agricultural, historical, cultural, archaeological or recreational values.

Standard recitals:  Describe the owner in fee simple; provide a brief and general description of the property; landowner’s willingness to grant a conservation easement with restrictions; statement describing landowner’s willingness to use the property consistent with the stated purpose and adherence to the terms, covenants and conditions of the conservation easement.   

Grantee authority:  A statement describing the easement holder’s authority to hold the conservation easement defined by Section 170(h)(3) of the Internal Revenue Code, Section 815.3 of the California Civil Code and as certified by the governing body of the easement holder.  The statement should express the responsibility to monitoring and enforce the terms and conditions of the conservation easement.

Landowner conveyance:  A statement of what the landowner desires to convey for valuable consideration to assure the protection of the defined conservation values and the purpose of the conservation easement.

Baseline conditions report:  The conservation easement should contain reference to the Baseline Conditions Report.  The Report must be signed and certified by the grantor and grantee as representing a current and accurate description and representation of the protected property, its resources and conservation values.  

Compliance monitoring:  The conservation easement should contain language that requires the easement area to be monitored by the grantee at least annually to assess the condition of the property, including without limitation, the conservation values and compliance with the conservation easement and purposes of the grant.  The easement must also contain language that allows the grantee access to the property no less than once in an agreed upon period of calendar years to assess compliance with the terms, covenants, and conditions of the Grant Agreement between grantor and the grantee.

Monitoring protocols:  Prior to the close of escrow, the grantee should develop monitoring protocols.  At a minimum, the protocols should address the terms and conditions of the conservation easement, the purpose of the easement and the conservation values.  The protocols should include a definition of impairment that in part includes a statement of what to do if the conservation values are reduced to such level that they are no longer sustainable and render the purpose of the conservation easement void.  The monitoring protocols should be reviewed and approved by grantor.

Monitoring report:  Commencing one year after the close of escrow and every year thereafter, the grantee should provide a written report to grantor describing and assessing the condition of the easement area and the condition of the conservation values.  The monitoring report should address each of the approved monitoring protocols, including an assessment of the conservation values.

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