It is important to know that a conservation easement...
- Is enabled by provincial legislation
- Can be for one of three purposes
- Is a legal contract
- Can be held only by certain organizations
- Contains a list of land use restrictions
- Does not transfer “use” rights
- Has tax and/or financial benefits
- Is unique
- Is based on a baseline document report
- Can be for all or part of your land
- Can be changed … but not easily
- Does not automatically grant public access
- Does not happen quickly
Is enabled by provincial legislation
Conservation easements are specifically enabled by provincial legislation, and the high-level rules governing how they are created and treated are covered in the Alberta Land Stewardship Act, Sec. 28-35.
Can be for one of three purposes
Although landowners and conservation groups may have a variety of goals, conservation easements may be negotiated in support of only three goals. The allowable purposes are the protection, conservation and enhancement of 1) the environment, 2) natural scenic or esthetic values or 3) agricultural land or land for agricultural purposes. There is also a series of sub-purposes subject to these broader purposes: recreational use, open space use, environmental education use, and research and scientific studies of natural ecosystems.
Is a legal contract
Though the ability to create conservation easements is enabled in provincial legislation, a conservation easement is a private, legal contract between a landowner and a qualified organization. This means it is subject to the same general rules and laws that guide the creation, negotiation and enforcement of a private contract.
Can be held only by certain organizations
Any landowner can grant a conservation easement, but only designated organizations can receive and hold that conservation easement. The law governing conservation easements outlines what groups can be considered a "qualified organization,” which is primarily limited to government agencies, municipalities, and charitable conservation groups established for specific land conservation purposes.
Contains a list of land use restrictions
The mechanism by which a conservation easement conserves the identified land values is a list of land use restrictions contained within the easement document. This list may be long or short and will contain agreed-upon restrictions each of which supports the overall intent of the conservation easement. Because conservation easements can require as well as restrict actions, conservation easements often include a management plan for the property.
Does not transfer “use” rights
It is more accurate to consider rights and opportunities to have been extinguished, rather than transferred to a conservation easement holder. For example, if a landowner had the opportunity to subdivide their property, but chose to grant a conservation easement with a restriction on sub-division, that does not mean the easement holder acquired the right to sub-divide the property.
Has tax and/or financial benefits
Every conservation easement has potential tax and/or financial benefits. When conservation easements are donated, the landowner is eligible for a charitable tax receipt, which can be spread across multiple tax years. If that gift is certified by the federal Ecological Gifts program, the landowner receives additional tax benefits. In very limited cases, conservation easements may be sold for all or a portion of their value.
Every landowner, every qualified organization, and every parcel of land is different. For this reason, despite all having the same basic form, every conservation easement is different. Each qualified organization will have a template conservation easement that is a starting point, but the terms and restrictions are negotiable like any other private legal contract.
Is based on a baseline document report
Land changes, as do landowners and land uses. A baseline documentation report is created at the outset, and is used to determine whether the character or use of the land subject to a conservation easement has changed in ways contrary to the conservation easement agreement. This report catalogues the features and functions that are intended to be conserved. It is also the basis for the regular monitoring undertaken by the qualified organization, and facilitates communication between the conservation easement “grantor” and “grantee.”
Can be for all or part of your land
A landowner may choose to have all or only part of their land parcel be subject to a conservation easement. The portion that is subject to the easement is surveyed and referenced specifically in the conservation easement document. As well, this portion does not need to be a subdivided parcel.
Can be changed … but not easily
The conservation easement tool is designed to recognize that landscapes change, as do land management best practices. An inflexible document is brittle and likely to become ineffective at some point in its life. Conservation easements may be modified by mutual agreement of the landowner and the qualified organization, but those modifications must still support the stated intent of the conservation easement. As well, the provincial minister responsible for the conservation easement legislation may remove a conservation easement if s/he deems it to be in the public interest to do so. This has never happened.
Does not automatically grant public access
There is nothing the conservation easement legislation that requires a landowner to provide public access to their land. The conservation easement will grant access to the easement holder for the purposes of monitoring and enforcing the easement. However, some qualified organizations have the provision of public access to conservation lands as part of their mandate, and will require that stipulation in any conservation easement they hold, just as some landowners will specifically request this.
Does not happen quickly
Conceptually, a conservation easement is straightforward, but the devil is in the details. Administratively, there are several notifications required, appraisals to be conducted, a baseline report created, and potentially EcoGift certification. More importantly, conservation easements are generally perpetual and not something landowners should rush into; they may involve significant family or partner discussion. Even a simple conservation easement, with no complications, can take a year to complete.