Amending or modifying a conservation easement
Legally speaking, a conservation easement can be considered a “hybrid” document. While its existence and the broad framework supporting its creation arise from the Alberta Land Stewardship Act, its detailed content is a matter of private negotiation and agreement between the landowner and qualified organization. As a result of this hybrid nature, there are a number of ways that conservation easements can be changed, in a variety of circumstances. Possible changes to a conservation easement include:
- amending or modifying the agreement;
- transferring the land or assigning the agreement;
- terminating the agreement.
Amending or modifying a conservation easement involves changes to the terms of the conservation easement agreement from those originally negotiated by the landowner and qualified organization. There are three ways a conservation easement agreement can be amended:
- by agreement between the landowner and qualified organization;
- by order of the Minister responsible for the Alberta Land Stewardship Act; and
- by Court order under the Land Titles Act.
Amendment by agreement
The Alberta Land Stewardship Act allows for modification of conservation easements by agreement of the landowner and qualified organization. Most conservation easement agreements will include a provision dealing with amendment by mutual agreement of the parties. These provisions may give further detail about the amendment process to be used (if any is specified), the matters or terms that may be amended and any other parties to be given notice of amendments.
Within conservation circles, many believe that parties should be cautious in amending conservation easement agreements, given their long-term (and often perpetual) intent, to avoid watering down the conservation value of the easement and the goals of the original contracting parties. In addition, parties must ensure that any amendments still support the stated intent and purpose of the conservation easement to maintain its validity. To help ensure that original intent and purpose is understood many land trusts ask landowners to provide a letter of intent or vision about their land and their wishes for their land.
If a conservation easement was the subject of tax benefits under the Ecological Gifts Program, the parties must get approval from Environment Canada before changing any terms of the conservation easement agreement. Failure to get such approval can result in tax penalties.
The Alberta Land Stewardship Act requires that either the landowner or qualified organization register the amending document with the Land Titles Office to record the amended conservation easement agreement against the land title.
What’s involved in holding a conservation easement? Can a conservation easement be modified?
How is a conservation easement certified as a federal EcoGift?
How is a conservation easement registered?
Amendment by Ministerial order
The Alberta Land Stewardship Act allows for modification of conservation easements by order of the Minister responsible for the Act, if the Minister considers such modification in the public interest. The Minister can make an order even if they, on behalf of the provincial government, are a party to the conservation easement (as either landowner or qualified organization). There is currently no requirement in the Act, regulations or policy that sets any process leading up to this form of order, which means that modifications could be imposed by the Minister through an order without notice to or the agreement of any party to the conservation easement. The Alberta Land Stewardship Act requires the Minister register a copy of the amending order with the Land Titles Office to record the amended conservation easement agreement against the land title.
How is a conservation easement registered?
To date, there is no further direction on modification by Ministerial order. This power has not yet been used by the relevant Minister, and no details have been provided by either regulation or policy. As mentioned above, if a conservation easement was the subject of tax benefits under the Ecological Gifts Program, the parties must get approval from Environment Canada before changing any terms of the conservation easement agreement. Failure to get such approval can result in tax penalties; see below(internal link to section on tax implications of change – below) for further details. It is unclear how this requirement would apply if an amendment were made by Ministerial order.
How is a conservation easement certified as a federal EcoGift?
Disposition or Change in Use of Ecological Gifts – What Recipients Need to Know (Fact sheet)
Amendment by Court order
In some ways, a conservation easement is similar to a restrictive covenant, a legal tool that enables long-term restrictions against a property. Section 34(3) of the Alberta Land Stewardship Act makes certain provisions of the Land Titles Act dealing with restrictive covenants applicable to conservation easements. By operation of s. 48(4) of the Land Titles Act, a conservation easement may be modified by Court order if:
- the modification will benefit the persons “principally interested in the enforcement” of the conservation easement; or
- the conservation easement conflicts with a land use bylaw or statutory plan under the Municipal Government Act (such as a municipal development plan); and
- the modification would be in the public interest.
To date, this form of modification has not been used for conservation easements. However, parties to a conservation easement should be aware and mindful of it when creating their own conservation easement agreement. Providing for amendment by agreement and avoiding any conflicts between the agreement and relevant land use bylaws, municipal development plans or other municipal statutory plans should be considered. It is important to note that what constitutes a “conflict” is not always clear. If the conservation easement requires the landowner to do something contrary to the bylaw that is likely to be deemed a conflict however, if the conservation easement requires the landowner to not do something or do nothing (i.e. a restriction) it is likely that the agreement and bylaw are not in conflict. It will generally be preferable (and less costly) for parties to pursue amendment by agreement, rather than through the courts.
If a conservation easement was the subject of tax benefits under the Ecological Gifts Program, the parties must get approval from Environment Canada before changing any terms of the conservation easement agreement. Failure to get such approval can result in tax penalties. (internal link to section on tax implications of change – below) It is unclear how this requirement would apply if an amendment were made by Court order.
How is a conservation easement certified as a federal EcoGift?
What happens when a conservation easement is challenged?
When a conservation easement agreement is challenged the court will decide on the “correct” interpretation of the agreement. In some cases the court may interpret the “true intent” of the agreement and alter it even when the terms of the agreement appear straightforward. To prevent any surprises regarding a court interpretation it is important that there is clarity around intended land uses and restrictions. Documenting ongoing discussions around negotiated uses and restrictions may end up before a court as illustration of the intent of the agreement itself.
Transferring conservation easement land or assigning a conservation easement agreement
Transfers and assignments may not directly change the substantive clauses of a conservation easement agreement, but they do change a party to the agreement, which can impact long-term conservation of the land.
Transferring conservation easement land
When a landowner grants a conservation easement, they give certain rights or opportunities to the qualified organization to protect the conservation values of their land, but they retain legal title and are able to sell or otherwise transfer it. There are no restrictions in the Alberta Land Stewardship Act that affect a landowner’s ability to transfer land subject to a conservation easement. However, it is common for conservation easement agreements to include provisions requiring that the landowner notify the qualified organization in advance of a sale of the property. A qualified organization may also wish to include provisions giving it the option to purchase or a right of first refusal when the landowner wishes to sell the property. Because the qualified organization is not a party to a transfer of conservation easement land unless it is taking title to the land itself, a key step post-transfer will be for it to contact the new landowner and begin building the necessary relationship to successfully continue long-term stewardship of the land.
What is a conservation easement? What is the simple description?
How does a conservation easement affect a land parcel? Subsection: Is the grantor’s ability to sell or will the land affected?
Common conservation easement agreement provisions
Conservation easement for agricultural (or mixed purpose) template
Registration of a conservation easement agreement against the land title means that a title search and review should make prospective buyers or other transferees aware of the conservation easement. However, when a landowner is selling or otherwise transferring conservation easement land, they should discuss any disclosure or notification requirements with their professional advisors (lawyers; real estate agents). In particular, they should advise a buyer about the conservation easement if the sale and purchase agreement includes clauses related to disclosure of environmental condition of the property.
If a conservation easement was the subject of tax benefits under the Ecological Gifts Program, the parties must get approval from Environment Canada before transfer of the conservation easement land. Failure to get such approval may result in tax penalties; see below (link to section on tax implications of change – below) for further details.
How is a conservation easement certified as a federal EcoGift?
Assigning a conservation easement agreement
The Alberta Land Stewardship Act allows a qualified organization to assign a conservation easement to another qualified organization and requires it to immediately notify the landowner of the assignment. The assignment is a contractual arrangement between the qualified organizations; the landowner is not a direct party to the transaction.
In addition, a qualified organization must have the ability in its founding document to transfer its conservation easements to another qualified organization if it is dissolved as an incorporated organization. This possibility is generally reflected in conservation easement agreements by including a section designating another qualified organization to which the conservation easement would be transferred if the grantee qualified organization is no longer able or willing to hold the conservation easement.
If a conservation easement was the subject of tax benefits under the Ecological Gifts Program, the parties must get approval from Environment Canada before changing any terms of a conservation easement agreement. Change of a party to the agreement may be caught in this requirement; parties should consult with the regional coordinator of the EcoGift Program before making such changes. Failure to get prior approval can result in tax penalties; see below (link to section on tax implications of change – below) for further details.
How is a conservation easement certified as a federal EcoGift?
Conservation easement for agricultural (or mixed purpose) template
What are the tax implications of changing a conservation easement?
The Canadian Ecological Gifts Program provides additional tax benefits for landowners who take steps to provide permanent protection of ecologically sensitive lands. To ensure this permanent protection for lands certified under the program, the federal government puts responsibility on the qualified organizations involved with these lands to maintain this protection by applying for prior written authorization through the program for changes in use and dispositions of the property. Where a qualified organization doesn’t get such authorization and a change to or disposition of the property is made, the qualified organization is subject to a tax of 50% of the fair market value of the property.
Most changes to conservation easements for properties certified under the Ecological Gifts Program will require the parties consider the possible tax consequences. Generally, only changes or dispositions that don’t negatively impact the property’s ecological condition will be authorized under the program. As such, it is crucial that any changes to conservation easements on properties under the Ecological Gift Program be undertaken carefully and with prior authorization from Environment Canada.
How is a conservation easement certified as a federal EcoGift?
EcoGifts Change in Use Factsheet
Do third parties have any rights or involvement when conservation easements are changed?
A conservation easement agreement is a hybrid document, because it is broadly enabled by legislation but created in substance by private contract between a landowner and a qualified organization. This raises questions about whether parties other than the landowner and qualified organization can have any rights or involvement in changing a conservation easement.
Under contract law, usually only the parties to the contract have rights to change that contract. Their successors will not have such rights unless provided within the contract, hence the common contract provision that binds successors, heirs and representatives of the parties to the contract terms. Under the Alberta Land Stewardship Act, a landowner can designate a second qualified organization as having power to enforce the conservation easement. This is often done as part of the conservation easement agreement and may give the second qualified organization status to participate or provide input regarding changes to the conservation easement. It is also open to the landowner and qualified organization to include any provisions they may agree to, regarding involvement of other parties.
Who’s involved in a conservation easement?
Common conservation easement agreement provisions
The Alberta Land Stewardship Act gives the Minister responsible for that Act the power to modify or terminate a conservation easement in the public interest, regardless of whether or not the Minister is a party to the conservation easement agreement.
A conservation easement can be modified or terminated by court order in specific circumstances. Because these circumstances include situations where a conservation easement conflicts with a land use bylaw or statutory plan under Part 17 of the Municipal Government Act (such as a municipal development plan), it is possible that a municipality could initiate court review of a conservation easement or otherwise have rights to participate in such proceedings. These provisions have not yet been applied to conservation easements, but court decisions on cases related to restrictive covenants have indicated that those covenants are a form of contract only enforceable by the parties to it and that the general public has no ability to seek court orders to enforce, change or set aside a restrictive covenant.
See the table below for information on the ways a conservation easement can be changed, the parties that may be involved and the parties that may be notified.
Change: | Who’s involved: | Who gets notice: |
---|---|---|
Amendment by parties to conservation easement agreement | Landowner; qualified organization | • Any party required to be notified under the terms of the agreement |
Amendment by Ministerial order | Minister responsible for Alberta Land Stewardship Act | • Environment Canada if EcoGift applied to conservation easement rn• Modifications must be registered on the land title |
Amendment by Court order under s. 48(4) Land Titles Act | Court of Queen’s Bench of Alberta; landowner; qualified organization | • Landowner & qualified organization • Environment Canada if EcoGift applied to conservation easement rn• Modifications must be registered on the land title |
Transfer of conservation easement land | Landowner; purchaser of land | • Any party required to be notified under the terms of the conservation easement agreement rn• Environment Canada if EcoGift applied to conservation easement |
Assignment of conservation easement | Qualified organization; transferee qualified organization | • Landowner • Modification of conservation easement must be registered on the land title rn• Environment Canada if EcoGift applied to conservation easement |
Termination by parties to conservation easement agreement | Landowner; qualified organization | • Any party required to be notified under the agreement’s terms • Environment Canada if EcoGift applied to conservation easement • Discharge of conservation easement must be registered on the land title |
Termination by Ministerial order | Minister responsible for Alberta Land Stewardship Act | • Environment Canada if EcoGift applied to conservation easement rn• Discharge of conservation easement must be registered on the land title |
Termination by Court order under s. 48(4) Land Titles Act | Court of Queen’s Bench of Alberta; landowner; qualified organization | • Landowner & qualified organization • Environment Canada if EcoGift applied to conservation easement rn• Discharge of conservation easement must be registered on the land title |