How is the conservation easement purpose(s) established?
Every conservation easement is different, but the essential steps in creating a CE are very similar regardless of the land parcel, landowner or qualified organization.
On the surface, one conservation easement document can look very different from another, as they reflect the personalities of the individuals and organizations that drafted them. However, the basic building blocks are fundamentally the same, based on there being a private contract (between the grantor and the grantee) and on the direction provided by the enabling legislation (Alberta Land Stewardship Act).
The conservation easement agreement generally begins with introductory sections that establish the context for the agreement. Generally this includes a statement of who the parties to the agreement are, definitions for any critical terms used in the agreement, and a general statement of the conservation purpose.
Grant of the Conservation Easement
One section will describe that a grant of a conservation easement is taking place between the two parties. A critical component in this section is the statement of the term of the easement. Conservation easements are usually pursued to protect a landscape’s critical services over time, so the term in these cases is usually perpetual, meaning “without end.”
This section may also include a more detailed statement of the purpose or intent of the conservation easement, providing the basis for future interpretation of the agreement.
A conservation easement is applied to a specific property, which needs to be clearly identified in the CE agreement. If the property is an entire subdivision, natural (e.g., an entire quarter section) or otherwise, the legal land description is likely sufficient. However, if the conservation easement is being applied only to a portion of the parcel, a more explicit description may be required. The goal here is to prevent future disputes over the area subject to the CE. Thus, a descriptive explanation of the area may be adequate, but a legal survey may be preferable. The boundary description must also be acceptable to the registrar of the Alberta Land Titles Office.
As well, if there are portions of the conservation easement that will be restricted in a different way from the remainder, these would also be explicitly identified. For example, if the CE generally restricts the building of houses, but the grantor and grantee agree on a building envelope within the CE for a future single house, this should be clearly identified. These different areas or zones are often supported by a map in an attached schedule.
It could be said that the list of restrictions is the “meat” of a conservation easement. These are the land use restrictions that collectively or individually support the conservation goals of the conservation easement. Outside of these restrictions, and any prescribed activities in the Management Plan, the landowner is free to manage the land as they desire. All future monitoring is undertaken relative to these restrictions (e.g., if there are restrictions against buildings, fences or gravel pits, future monitoring will ensure these features are not present).
These restrictions should be carefully considered and crafted with reference to the conservation goals they are intended to accomplish; overly-vague connections to conservation may be more subject to challenge in future years, while overly-specific restrictions may be too brittle for an ever-changing landscape and evolving knowledge base.
An example of common conservation easement restrictions can be found here Sample Restrictions in Conservation Easement.
There are generally two elements of access to the property that are described in the conservation easement agreement. First, if the parties have chosen to allow – or wish to promote – public access to the property, that is identified within the agreement. Guidelines around how that happens are usually included in the agreement or in the associated Management Plan. If the parties are not interested in allowing public access to the property, the document is either silent on the issue or explicitly gives discretion to the property owner.
Second, the qualified organization must have access to the property for the purposes of monitoring and enforcement. The conditions under which that happens, the frequency and the permissions required/waived are outlined here.
Enforcement and Dispute Resolution
As most conservation easements are perpetual, it is likely a question of “when” not “if” a dispute will arise or enforcement will be required. For that reason, conservation easement documents contain a dispute resolution process (see How are infractions of conservation easements handled? [Link: What’s Involved in Holding a conservation easement? | How are Infractions of conservation easements handled?]). The main purpose of these mechanisms is to avoid rather than facilitate legal action, and so generally provide a range of remedies reflecting a range of approaches, including bargaining in good faith, arbitration, compliance orders and injunctions, all the way to full legal remedies. This section will likely also address imminent threats (e.g., flooding, fire) to the conservation values of the property and how the dispute resolution process can be modified to accommodate these.
The Alberta Land Stewardship Act stipulates who can enforce a conservation easement. The qualified organization who receives the conservation easement can enforce the CE, as can another qualified organization designated by the grantor. These decisions are generally reflected in this section. Clauses here will likely also reinforce that the conservation easement does not lapse through non-enforcement, and that the failure of one component does not negate the rest of the agreement.
Transfer of the Conservation Easement
The Alberta Land Stewardship Act (ALSA) requires any non-government qualified organization to have a provision in their bylaws for transferring their conservation easements in the event the organization is dissolved. This is generally reflected in each conservation easement document in a section that either states to whom the conservation easement would be transferred if the grantee is no longer able or willing to hold it, or lays out the process by which the conservation easement would be assigned if such a situation arose. The grantor (the landowner) should take an active role in determining who this back up qualified organization is.
While every conservation easement is tailored to its unique circumstances, some other components that regularly form part of conservation easements include:
References to Associated Plans – Conservation easements come with a Baseline Document Report, and often a Management Plan. The CE agreement will make reference to these external documents, or in some cases, include these as part of the actual agreement.
Maps – Maps are generally a significant part of a Baseline Documentation Report, but the conservation easement agreement itself may include a map of the property, especially if it is deemed to add a valuable visualization of the portion of the property subject to the CE
Postponements / Encumbrances – Very often, the conservation easement is not the only easement or encumbrance on the property. The conservation easement may explicitly list the other encumbrances, noting their priority and identifying if any postponements (lowering the priority of an encumbrance below the conservation easement) were sought.
For more information on drafting conservation easements, see:
Which advisors should be consulted?
A critical part of the conservation easement creation process is the consultation that both the grantor and the grantee must undertake while negotiating and drafting the CE agreement. Each person/organization will have a specific list of advisors they wish to consult, but the following are common ones to approach (see also Professional Advisors).
Family – There are a number of forms the conservation easement agreement could ultimately take, each affecting the grantor’s family members in different ways. Consultation with family members can avoid pitfalls and yield creative approaches.
Legal – Most conservation easement negotiations begin with a model CE that has been legally reviewed. However, it is a negotiation, and both the grantor and grantee should have their lawyer or legal counsel review the implications as the document evolves.
Conservation Specialists – Each property has numerous conservation values that could be important to the grantor and grantee, and the two parties rarely encompass the full range of expertise needed to properly inventory and assess important features and risks to those features. Conservation specialists could include consultants, academics, non-profit conservation groups or others.
Tax Advisor – There are numerous tax implications associated with conservation easements, especially in the case of a donation. It is critical to understand the specifics of the grantor’s tax situation in order to make full use of the tax benefits.
Financial, Succession or Estate Planner – Many people have worked with various types of financial planners to understand how to manage their income and assets to best advantage for them and for their heirs. The grant of a conservation easement could have significant implications for these plans.
Business Planner – A corporate entity granting a conservation easement needs to be clear how the change in such a significant asset (the land) affects existing or future business plans.
Philanthropic Funders – Most non-government qualified organizations are dependent on donations from philanthropic funders. Keeping these funding partners in the loop, or drawing them into the planning process, can expedite the fund development process.
Environment Canada – The Ecological Gifts program, run by Environment Canada, provides additional tax benefits for donors of gifts of ecological sensitive property. To be eligible, properties are assessed for their ecological value by Environment Canada. Discussing a potential conservation easement with the representative of that program can be a valuable initial step.
Neighbours/friends – A critical advisor group for potential grantors of conservation easements are the friends and neighbours who have already granted a conservation easement. These personal contacts can provide insights on what to expect with a conservation easement and which qualified organizations might be appropriate.
For more information on drafting conservation easements, see:
What is included in a baseline report?
A Baseline Report (often referred to by different names, such as Baseline Documentation Report, Conservation Report or other) is the snapshot of the conservation features and values of the property. This document outlines what is important about the property in a conservation sense and forms the basis of all future monitoring, interpretation and necessary enforcement.
The Baseline Report is generally prepared by the qualified organization, but are most effective when the landowner is directly involved. The landowner may be the most knowledgeable person about the property and may have existing conservation inventories that can be drawn on. At the very least both grantor and grantee sign off that the report is a valid representation of the property.
There are no prescribed criteria for what should be included in a Baseline Report, but the following sections should be considered.
Context – The Baseline Report should explicitly reference the conservation purpose of the CE, making it clear that the assessment and inventories included are articulated in terms of that purpose. When the conservation values being protected are part of a larger picture, that regional context should be described.
Human Footprint – The Baseline Report should include a description of the existing human footprint and land use activities, and should identify any activities that are to be grandfathered.
Natural or Conservation Features – The Report should include a listing and description of the features of the landscape the parties are hoping to protect. This could include water/hydrology, vegetation, surficial geology, wildlife, scenic views and/or agriculturally-productive land.
Monitoring and Stewardship – As the Baseline Report is the basis of future monitoring and stewardship, the report should be structured to support that future work. This should include detailed descriptions of the photo-points so they can be replicated, and recommendations on monitoring approaches where applicable.
What are management plans?
Often conservation easements include a management plan, either as part of the conservation easement agreement, or as a stand-alone document referred to by the agreement. The management plan reflects the path forward, and provides greater clarity on how the conservation easement’s conservation goals will be achieved in the future.
The concept of a conservation easement management plan is rooted in the ability for CEs to both restrict and prescribe future activities (in contrast to restrictive covenants). Areas that are commonly addressed in Management Plans include timber harvest, agricultural operations, vegetation management (including invasives), water and wetland conservation, wildlife management and Best/Beneficial Management Practices (BMPs). Management plans may also identify rights retained by the landowner and how they will be used or managed to support the conservation goals (e.g., motorized vehicles use only on existing trails for the purpose of supporting ranching activities).
The parties should take care to draft the management plan in such a way that it has a light touch on any management activity that does not relate directly to conservation goals. Not doing so can create unnecessary points of contention and create conservation easement elements that are difficult to monitor and enforce.
What does “stewarding” a conservation easement mean?
For more information on how management plans inform and guide conservation easement stewardship, see:
Do I need an appraisal?
The grantor and grantee will want to retain the services of a qualified appraiser in order to understand the financial value of the conservation easement. How quickly they do that depends on when an accurate valuation of the conservation easement is needed. The valuation is not part of the CE agreement, but may be a significant part of the grantor’s decision-making process (see How is a conservation easement valued?)
The appraiser selected must be certified and should be familiar with appraising conservation easements. In the case of an Ecological Gift, the appraisal will need to be reviewed by Environment Canada’s Appraisal Review Board and must satisfy their criteria for both appraisers and appraisals (see Engaging an Appraiser to Appraise an Ecological Gift )
When does a conservation easement come into effect?
For a conservation easement to come into effect, it must be registered at the Land Titles Office , with the Registrar adding it to the title of the affected land. No less than sixty (60) days prior to that registration, the parties must issue the notifications required under the Alberta Land Stewardship Act and the associated Conservation Easement Registration Regulation.
For more detail on the conservation easement registration process, see How is a conservation easement registered?.