MODEL CONSERVATION EASEMENT

Natural Lands Trust

(610) 353 - 5587

Source:

Diehl, J. and T. Barrrett. "The Conservation Easement Handbook". For: theTrust for Public Land and the Land Trust Alliance. Washington, DC.

MODEL CONSERVATION EASEMENT

Model Conservation Easement

Note: The boxed numbers inserted in the text of the easement correspond with the subheading numbers in the commentary that follows.

DEED OF CONSERVATION EASEMENT 1

THIS GRANT DEED OF CONSERVATION EASEMENT is made this

____day of __________, 19___, by ___________________________________

and _____________________________________, husband and wife, having an

address at _______________________________________________________

("Grantors"), in favor of ____________________________________________

a non profit [state of incorporation] corporation [qualified to do business in

(state where property is located)] , having an address at ____________

__________________________________________("Grantee"). 2

WITNESSETH:

WHEREAS, 3 grantors are the sole owners in fee simple of certain real

property in ___________________ County, [state] ,

more particularly described in Exhibit A attached hereto and incorporated by

this reference (the "Property"); 4 and

WHEREAS, the property possesses [e.g., natural, scenic, open space,

historical, educational, and/or recreational] values (collectively, "conservation

values") of great importance to Grantors, the people of [county, locale,

or region] And the people of the State of ____________________; 5 and

WHEREAS, in particular, [describe specific conservation

values] ; 6 and

WHEREAS, the specific conservation values of the Property are

documented in an inventory of relevant features of the Property, dated _______

____________ , 19_____ , [on file at the offices of Grantee–or–

attached hereto as Exhibit B] and incorporated by this reference ("Baseline

Documentation"), which consists of reports, maps, photographs, and other docu-

mentation that the parties agree provide, collectively, an accurate representation

of the Property at the time of this grant and which is intended to serve as an

objective information baseline for monitoring compliance with the terms of this

grant; and 7

WHEREAS, Grantors intend that the conservation values of the Property

be preserved and maintained by the continuation of land use patterns, including,

without limitation, those relating to [e.g., farming, ranching, or

timber production] Existing at the time of this grant, that do not

significantly impair or interfere with those values; and 8

MODEL EASEMENT

WHEREAS, Grantors further intend, as owners of the Property, to

convey to Grantee the right to preserve and protect the conservation values of

the Property in Perpetuity; and 9

WHEREAS, Grantee is a publicly supported, tax-exempt nonprofit

organization, qualified under Section 501(c)(3) and 170(h) of the Internal

Revenue Code, whose primary purpose is [e.g., the preservation, protection,

or enhancement of land in its natural, scenic, historical, agricultural,

forested, and/or open space condition] ; and 10

WHEREAS, grantee agrees by accepting this grant to honor the

intentions of Grantors stated herein and to preserve and protect in perpetuity

the conservation values of the Property for the benefit of this generation and

the generations to come; 11

NOW, THEREFORE, in consideration of the above and the mutual

covenants, terms, conditions, and restrictions contained herein, and pursuant to

the lows of [state where property is located] and in particular [specific

state statutory authority] , Grantors hereby voluntarily grant and convey to

Grantee a conservation easement in perpetuity over the Property of the nature

and character and to the extent hereinafter set forth ("Easement"). 12

1. Purpose. It is the purpose of this Easement to assure that the Property

will be retained forever [predominantly] in its [e.g., natural, scenic, historic,

agricultural, forested, and/or open space] condition and to prevent any use of

the Property that will significantly impair or interfere with the conservation

values of the Property. Grantors intend that this Easement will confine the use

of the Property to such activities, including, without limitation, those involving

[e.g., farming, ranching, timber production, public recreation, or education] ,

as are consistent with the purpose of this Easement. 13

2. Rights of Grantee. To accomplish the purpose of this Easement the

following rights are conveyed to Grantee by this Easement:

a. To preserve and protect the conservation values of the Property;

b. To enter upon the Property at reasonable times in order to monitor

Grantors' compliance with and otherwise enforce the terms of this Easement;

provided that such entry shall be upon prior reasonable notice to Grantors, and

Grantee shall not unreasonable interfere with Grantors' use and quiet enjoyment

of the Property; and

c. To prevent any activity on or use of the Property that is inconsistent

with the purpose of this Easement and to require the restoration of such areas or

features of the Property that may be damaged by any inconsistent activity or use,

pursuant to paragraph 6. 14

3. Prohibited Uses. Any activity on or use of the Property inconsistent

with the purpose of this Easement is prohibited. Without limiting the generality

of the foregoing, the following activities and uses are expressly prohibited: 15

[Insert Express Restrictions] 16

MODEL CONSERVATION EASEMENT

4. Reserved Rights. Grantors reserve to themselves, and to their per-

sonal representatives, heirs, successors, and assigns, all rights accruing from

their ownership of the Property, including the right to engage in or permit or

invite others to engage in all uses of the Property that are not expressly pro-

hibited herein and are not inconsistent with the purpose of this Easement.

[Without limiting the generality of the foregoing, the following rights are

expressly reserved:] 17

[Insert Express Reservations, if desired] 18

5. Notice of Intention to Undertake Certain Permitted Actions. The

purpose of requiring Grantors to notify Grantee prior to undertaking certain

permitted activities, as provided in paragraphs ______ , is to afford Grantee an

opportunity to ensure that the activities in question are designed and carried

out in a manner consistent with the purpose of this Easement. Whenever notice

is required Grantors shall notify Grantee in writing not less than [e.g., sixty

(60)] days prior to the date Grantors intend to undertake the activity in

question. The notice shall describe the nature, scope, design, location, timetable,

and any other material aspect of the proposed activity in sufficient detail to

permit Grantee to make an informed judgement as to its consistency with the

purpose of this Easement.

5.1 Grantee's Approval. Where Grantee's approval is required, as

set forth in paragraphs ______ , Grantee shall grant or withhold its approval in

writing within [e.g., sixty (60)] Days of receipt of Grantors' written request

therefor. Grantee's approval may be withheld only upon a reasonable

determination by Grantee that the action as proposed would be inconsistent

with the purpose of this Easement. 19

6. Grantee's Remedies. If Grantee determines that Grantors are in

violation of the terms of this Easement or that a violation is threatened, Grantee

shall give written notice to Grantors of such violation and demand corrective

action sufficient to cure the violation and, where the violation involves injury to

the Property resulting from any use or activity inconsistent with the purpose of

this Easement, to restore the portion of the Property so injured. If Grantors fail

to cure the violation within [e.g., thirty (30)] Days after receipt of notice

thereof from Grantee, or under circumstances where the violation cannot

reasonably be cured within a [thirty (30)] Day period, fail to begin curing

such violation within the [thirty (30)] Day period, or fail to continue diligently

to cure such violation until finally cured, Grantee may bring an action at law or in

equity in a court of competent jurisdiction to enforce the terms of this Easement,

to enjoin the violation, ex parte as necessary, by temporary or permanent

injunction, to recover any damages to which it may be entitled for violation of

the terms of this Easement of injury to any conservation values protected by this

Easement, including damages for the loss of scenic, aesthetic, or environmental

MODEL EASEMENT

values, and to require the restoration of the Property to the condition that existed

prior to any such injury. Without limiting Grantors' liability therefor, Grantee,

in its sole discretion, may apply any damages recovered to the cost of under-

taking any corrective action on the Property. If Grantee, in its sole discretion,

determines that circumstances require immediate action to prevent or mitigate

significant damage to the conservation values of the Property, Grantee may

pursue its remedies under this paragraph without prior notice to Grantors or

without waiting for the period provided for cure to expire. Grantee's rights

under this paragraph apply equally in the event of either actual or threatened

violations of the terms of this Easement, and Grantors agree that Grantee's

remedies at law for any violation of the terms of this Easement are inadequate

and that Grantee shall be entitled to the injunctive relief described in this

paragraph, both prohibitive and mandatory, in addition to such other terms of

this Easement, without the necessity of proving either actual damages or the

inadequacy of otherwise available legal remedies. Grantee's remedies described

in this paragraph shall be cumulative and shall be in addition to all remedies now

or hereafter existing at law or in equity. 20

6.1 Costs of Enforcement. Any costs incurred by Grantee in enforcing

the terms of this Easement against Grantors, including, without limitation, costs

of suit and attorneys' fees, and any costs of restoration necessitated by Grantors'

violation of the terms of this Easement shall be borne by Grantors. If Grantors

prevail in any action to enforce the terms of this Easement, Grantors' costs of

suit, including, without limitation, attorneys' fees, shall be borne by Grantee. 21

6.2 Grantee's Discretion. Enforcement of the terms of this Easement

shall be at the discretion of Grantee, and any forbearance by Grantee to exercise

its rights under this Easement in the event of any breach of any term of this

Easement by Grantors shall not be deemed or construed to be a waiver by

Grantee of such term or of any subsequent breach of the same or any other term

of this Easement or of any of Grantee's rights under this Easement. No delay or

omission by Grantee in the exercise of any right or remedy upon any breach by

Grantors shall impair such right or remedy or be construed as a waiver.

6.3 Waiver of Certain Defenses. Grantors hereby waive any defense of

laches, estoppel, or prescription. 22

6.4 Acts Beyond Grantors' Control. Nothing contained in this Easement

shall be construed to entitle Grantee to bring any action against Grantors for

any injury to or change in the Property resulting from causes beyond Grantors'

control, including, without limitation, fire, flood, storm, and earth movement, or

from any prudent action taken by Grantors under emergency conditions to

prevent, abate, or mitigate significant injury to the Property resulting from such

causes. 23

7. Access. No right of access by the general public to any portion of the

Property is conveyed by this Easement. 24

MODEL CONSERVATION EASEMENT

8. Costs and Liabilities. Grantors retain all responsibilities and shall bear

all costs and liabilities of any kind related to the ownership, operation, upkeep,

and maintenance of the Property, including the maintenance of adequate

comprehensive general liability insurance coverage. Grantors shall keep the

Property free of any liens arising out of any work performed for, materials

furnished to, or obligations incurred by Grantors. 25

8.1 Taxes. Grantors shall pay before delinquency all taxes, assessments,

fees, and charges of whatever description levied on or assessed against the

Property by competent authority (collectively "taxes"), including any taxes

imposed upon, or incurred as a result of, this Easement, and shall furnish

Grantee with satisfactory evidence of payment upon request. [Grantee is

authorized but in no event obligated to make or advance any payment of taxes,

upon [e.g., three (3)] Days prior written notice to Grantors, in accordance

with any bill, statement, or estimate procured from the appropriate authority,

without inquiry into the validity of the taxes or the accuracy of the bill, state-

ment, or estimate, and the obligation created by such payment shall bear

interest until paid by Grantors at the lesser of ____ percentage points over the

prime rate of interest from time to time charged by [designated bank] or the

maximum rate allowed by law.]

8.2 Hold Harmless. Grantors shall hold harmless, indemnify, and defend

Grantee and its members, directors, officers, employees, agents, and contractors

and the heirs, personal representatives, successors, and assigns of each of them

(collectively "Indemnified Parties") from and against all liabilities, penalties,

costs, losses, damages, expenses, causes of action, claims, demands, or judg-

ments, including, without limitation, reasonable attorneys' fees, arising from or

in any way connected with: (1) injury to or the death of any person, or physical

damage to any property, resulting from any act, omission, condition, or other

matter related to or occurring on or about the Property, regardless of cause,

unless due solely to the negligence of any of the Indemnified Parties; (2) the

obligations specified in paragraphs 8 and 8.1; and (3) the existence or adminis-

tration of this Easement. 27

9. Extinguishment. If circumstances arise in the future such as render the

purpose of this Easement impossible to accomplish, this Easement can only be

terminated tr extinguished, whether in whole or in part, by judicial proceedings in

a court of competent jurisdiction, and the amount of the proceeds to which

Grantee shall be entitled, after the satisfaction of prior claims, from any sale,

exchange, or involuntary conversion of all or any portion of the Property

subsequent to such termination or extinguishment, shall be determined, unless

otherwise provided by [state] law at the time, in accordance with paragraph 9.1.

Grantee shall use all such proceeds in a manner consistent with the conservation

purposes of this grant. 28

MODEL EASEMENT

9.1 Proceeds. This Easement constitutes a real property interest immedi-

ately vested in Grantee, which, for the purposes of paragraph 9, the parties

stipulate to have a fair market value determined by multiplying the fair market

value of the Property unencumbered by the Easement (minus any increase in

value after the date of this grant attributable to improvements) by the ratio of the

value of the Easement at the time of this grant to the value of the Property,

without deduction for the value of the Easement, at the time of this grant. The

values at the time of this grant shall be those values used to calculate the

deduction for federal income tax purposes allowable by reason of this grant,

pursuant to Section 170(h) of the Internal Revenue Code of 1954, as amended.

For the purposes of this paragraph, the ratio of the value of the Easement to the

value of the Property unencumbered by the Easement shall remain constant. 29

9.2 Condemnation. If the Easement is taken, in whole or in part, by

exercise of the power of eminent domain, Grantee shall be entitled to

compensation in accordance with applicable law. 30

10. Assignment. This Easement is transferable, but Grantee may assign

its rights and obligations under this Easement only to an organization that is a

qualified organization at the time of transfer under Section 170(h) of the Internal

Revenue Code of 1954, as amended (or any successor provision then applicable),

and the applicable regulations promulgated thereunder, and authorized to acquire

and hold conservation easements under [state statute] (or any successor provision

then applicable). As a condition of such transfer, Grantee shall require that the

conservation purposes that this grant is intended to advance continue to be carried

out. 31

11. Subsequent Transfers. Grantors agree to incorporate the terms of this

Easement in any deed or other legal instrument by which they divest themselves

of any interest in all or a portion of the Property, including, without limitation, a

leasehold interest. Grantors further agree to give written notice to Grantee of the

transfer of any interest at least [e.g., twenty (20)] days prior to the date of such

transfer. The failure of Grantors to perform any act required by this paragraph shall

not impair the validity of this Easement or limit its enforceability in any way. 32

12. Estoppel Certificates. Upon request by Grantors, Grantee shall within

[e.g., twenty (20)] days execute and deliver to grantors any document, including

an estoppel certificate, which certifies Grantors' compliance with any obligation

of Grantors contained in this Easement and otherwise evidences the status of this

Easement as may be requested by Grantors. 33

13. Notices. Any notice, demand, request, consent, approval, or

communication that either party desires or is required to give to the other shall be

in writing and either served personally or sent by first class mail, postage prepaid,

addressed as follows:

To Grantors:	____________________

____________________

____________________

MODEL CONSERVATION EASEMENT

To Grantee:	____________________

____________________

____________________

or to such other address as either party from tie to time shall designate by

written notice to the other. 34

14. Recordation. Grantee shall record this instrument in timely fashion

in the official records of __________ County, [state] And may re-record it

at any time as may be required to preserve its rights in this Easement. 35

15. General Provisions.

a.	Controlling Law. The interpretation and performance of this

Easement shall be governed by the laws of the State of [state] .

b.	Liberal Construction. Any general rule of construction to the

contrary notwithstanding, this Easement shall be liberally construed in favor of

the grant to effect the purpose of this Easement and the policy and purpose of,

[state statute] . If any provision in this instrument is found to be ambiguous, an

interpretation consistent with the purpose of this Easement that would render the

provision valid shall be favored over any interpretation that would render it invalid.

c.	Severability. If any provision of this Easement, or the application

thereof to any person or circumstance, is found to be invalid, the remainder of the

provisions of this Easement, or the application of such provision to persons or

circumstances other than those as to which it is found to be invalid, as the case

may be, shall not be affected thereby.

d.	Entire Agreement. This instrument sets forth the entire agreement

of the parties with respect to the Easement and supersedes all prior discussions,

negotiations, understandings, or agreements relating to the Easement, all of which

are merged herein. [No alteration or variation of this instrument shall be valid or

binding unless contained in an amendment that complies with paragraph ____ (see

supplementary provisions re: Amendment.)]

e.	No Forfeiture. Nothing contained herein will result in a forfeiture

or reversion of Grantor's title in any respect.

f.	Joint Obligation. The obligations imposed by this Easement upon

Grantors shall be joint and several.

g.	Successors. The covenants, terms, conditions, and restrictions of

this Easement shall be binding upon, and inure to the benefit of, the parties hereto

and their respective personal representatives, heirs, successors, and assigns and

shall continue as a servitude running in perpetuity with the Property.

h. Termination of Rights and Obligations. A party's rights and

obligations under this Easement terminate upon transfer of the party's interest

in the Easement or Property, except that liability for acts or omissions occurring

prior to transfer shall survive transfer.

MODEL EASEMENT

i.	Captions. The captions in this instrument have been inserted

solely for convenience of reference and are not a part of this instrument and shall

have no effect upon construction or interpretation.

j.	Counterparts. The parties may execute this instrument in two or

more counterparts, which shall, in the aggregate, be signed by both parties; each

counterpart shall be deemed an original instrument as against any party who has

signed it. In the event of any disparity between the counterparts produced, the

recorded counterpart shall be controlling. 36

TO HAVE AND TO HOLD unto Grantee, its successors, and assigns

forever. 37

IN WITNESS WHEREOF Grantors and Grantee have set their hands

on the day and year first above written.

______________________

______________________

Grantors

______________________

Grantee

By ___________________

its [Official Capacity] 38

[Acknowledgments]

SCHEDULE OF EXHIBITS

A.	Legal Description of Property Subject to Easement

[B.	Baseline Documentation]

B. or C.	Site Descriptions/Map

[C. or D.	Identification of Prior Mortgage

MODEL CONSERVATION EASEMENT

Supplementary Provisions 39

(Paragraph numbers indicate relative position in model.)

[5.2]	Arbitration. If a dispute arises between the parties concerning the

consistency of any proposed use or activity with the purpose of this Easement,

and Grantors agree not to proceed with the use or activity pending resolution of

the dispute, either party may refer the dispute to arbitration by request made in

writing upon the other. Within [e.g., thirty (30)] days of the receipt of such a

request, the parties shall select a single arbitrator to hear the matter. If the parties

are unable to agree on the selection of a single arbitrator, then each party shall

name one arbitrator and the two arbitrators thus selected shall select a third

arbitrator; provided, however, if either party fails to select an arbitrator, or if the

two arbitrators selected by the parties fail to select the third arbitrator within

[e.g., fourteen (14)] days after the appointment of the second arbitrator, then

in each such instance a proper court, on petition of a party, shall appoint the

second or third arbitrator or both, as the case may be, in accordance with [state

arbitration statute] , or any successor statute then in effect. The matter shall be

settled in accordance with the [state arbitration statute or other appropriate body

of rules] then in effect, and a judgment on the arbitration award may be entered in

any court having jurisdiction thereof. The prevailing party shall be entitled, in

addition to such other relief as may be granted, to a reasonable sum as and for all

its costs and expenses related to such arbitration, including, without limitation, the

fees and expenses of the arbitrators and attorneys' fees, which shall be determined

by the arbitrator(s) and any court of competent jurisdiction that may be called

upon to enforce or review the award. 40

[Between 9 and 10] Amendment. If circumstances arise under which an

amendment to or modification of this Easement would be appropriate, Grantors

and Grantee are free to jointly amend this Easement; provided that no amendment

shall be allowed that will affect the qualification of this Easement or the status of

Grantee under any applicable laws, including [state statute] or Section 170(h)

of the Internal Revenue Code of 1954, as amended, and any amendment shall be

consistent with the purpose of this Easement, and shall not affect its perpetual

duration. Any such amendment shall be recorded in the official records of

__________ County, [state] . 41

[10.1]	Executory Limitation. If Grantee shall cease to exist or to be a

qualified organization under Section 170(h) of the Internal Revenue Code of

1954, as amended, or to be authorized to acquire and hold conservation

easements under [state statute] , and a prior assignment is not made pursuant

to paragraph 10, then Grantee's rights and obligations under this Easement shall

become immediately vested in [designated back-up grantee] . If [designated

back-up grantee] is no longer in existence at the time the rights and obligations

under this Easement would otherwise vest in it, or if [designated back-up

grantee] is not qualified or authorized to hold conservation easements as

provided for an assignment pursuant to paragraph 10, or if it shall refuse such

MODEL EASEMENT

rights and obligations, then the rights and obligations under this Easement shall

vest in such organization as a court of competent jurisdiction shall direct

pursuant to the applicable [state] law and with due regard to the requirements

for an assignment pursuant to paragraph 10. 42

[Between 10 and 11] Subordination. At the time of conveyance of this

Easement, the Property is subject to the mortgage identified in Exhibit [C or D]

attached hereto and incorporated by this reference, the holder of which has

agreed by separate instrument, which will be recorded immediately after this

Easement, to subordinate its rights in the Property to this Easement to the extent

necessary to permit the Grantee to enforce the purpose of the Easement in

perpetuity and to prevent any modification or extinguishment of this Easement

by the exercise of any rights of the mortgage holder. The priority of the existing

mortgage with respect to any valid claim on the part of the existing mortgage

holder to the proceeds of any sale, condemnation proceedings, or insurance or to

the leases, rents, and profits of the Property shall not be affected thereby, and any

lien that may be created by Grantee's exercise of any of its rights under this

Easement shall be junior to the existing mortgage. Upon request, Grantee agrees

to subordinate its rights under this Easement to the rights of any future mortgage

holders or beneficiaries of deeds of trust to the proceeds, leases, rents, and profits

described above and likewise to subordinate its rights under any lien and to

execute any documents required with respect to such subordination, except that

the priority of any lien created by Grantee's exercise of any of its rights under this

Easement prior to the creation of a mortgage or deed of trust shall not be affected

thereby, nor shall this Easement be subordinated in any other respect. 43