Conservation Easements: protection of land and private property

Last week it was reported that Tim Sweeney, co-founder of Epic Games (the studio that brought you Gears of War), established a 7,000 acre conservation easement to protect the Box Creek Wilderness in North Carolina. What exactly is a conservation easement, and how is it used to protect land?

Box Creek Wilderness
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A landowner who wants to protect the land that they own faces a problem. They must ensure that the land is conserved after they no longer own it. If a conservationist landowner dies, their heirs may not be able to maintain the property, and the heirs would be forced to sell it, possibly dividing it up in the process and opening it up to possible development. To solve this problem the landowner may place a conservation easement on all or part of their property. With an easement, the landowner still owns the property, but they give up some of their rights to develop that property. In the process, they engage a qualified organization, usually a land trust or a governmental agency, to ensure that the conservation objectives are met. A conservation easement outlasts the original owner. The easement follows the land in perpetuity, so no one will ever be able to use the land under the easement in a way that is contrary to the conservation objectives.

The right to establish a conservation easement comes from a notion that property ownership consists of a “bundle of rights”1,2 including the right to build upon that land, to exclude others from using land, to extract the mineral, water and biological resources of the land, and many others. Ownership of a piece of land doesn’t necessarily mean you possess all of the rights to that land. Indeed when you mortgage your property, you give up some of your rights to the property to a lender in exchange for a loan. The same thing happens when you place a conservation easement on your land. You give up the right to subdivide the land and the right to develop the property in certain ways to the qualified conservation organization. Each individual conservation easement spells out the rights to the property the landowner retains and the rights that the conservation organization receives, and they are constructed differently for each easement. An easement could allow a landowner to farm or to harvest timber from the property, assuming the landowner does this in a way that is consistent with the conservation objectives of the easement.

Easements are more cost-effective than a conservation organization buying the land outright. The Nature Conservancy, the largest non-profit holder of easements in the United States, acquired 34 percent of its land between 1954 and 2003 through conservation easements, but only 16 percent of its total land-acquisition costs over that period went to easements3. They also provide financial benefits to landowners through tax relief given to landowners who establish an easement.

The Nature Conservancy maintains a good set of resources on easements.

1. Jane B. Baron. 2013. Rescuing the bundle-of-rights metaphor in property law. University of Cincinnati Law Review.
2. James Penner. 1995. The “bundle of rights” picture of property. UCLA Law Review.
3. The Nature Conservancy. Easements 101

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