Conservation Easements

A conservation easement is a device whereby a landowner relinquishes certain rights or opportunities in order to protect the conservation values of all or part of their land. That "interest in the land" is granted to an eligible conservation organization or government agency. The conservation easement is typically negotiated in perpetuity, and is registered on the title of the land. The landowner retains title, and continues using the land subject to the restrictions in the easement. They are free to sell, gift or will that property, but the easement binds future landowners to the same land use restrictions.

The conservation easement in general - and those land use restrictions in particular - are designed to protect a set of ecological, scenic and/or agricultural values which are catalogued and agreed on at the outset.

To understand how a conservation easement works, one can view ownership of land like a bundle of sticks. In that bundle there may be several rights and opportunities - for example the ability to harvest trees, to grow crops, to modify wetlands, to build buildings, etc. With a conservation easement, the landowner grants certain 'sticks' in that bundle to a qualified organization or agency in order to guard the environmental, scenic or agricultural values of the land.

The landowner retains all the other sticks. In other words, s/he continues to be the landowner, while the easement holder is said to hold an 'interest' in the land.

It is also 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 that law. In Alberta, that law is 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 are also a series of sub-purposes subject to these broad purposes: recreational use, open space use, environmental education use, 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 who can be considered a "qualified organization", which is primarily limited to government agencies 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 an agreed-upon list of restrictions each of which supports the overall intent of the CE. Because conservation easements can contain require as well as restrict actions, CEs are increasingly including 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.

Is unique

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 CE 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 document 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 CE agreement. This report catalogues the features and functions that are intended to be conserved, and is the basis for the regular monitoring undertaken by the qualified organization, and for communication between the CE '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 CE is 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 CE 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.

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 creation, and potentially EcoGift certification. More importantly, conservation easements are generally perpetual and not something landowners should rush into; they may involve significant family discussion. Even a simple conservation easement, with no complications, can take a year to complete.

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