Do You Need a Lawyer for a Conservation Easement?

And how much time and money will it take?

“Conservation easements are a very useful tool, where you can protect interests, you can sell interests, and you can keep doing what you want to do. It provides a nice vehicle for a lot of avenues for landowners, as well as project proponents,” says G. Braiden Chadwick, a land use attorney in Northern California who has established numerous easements.

“And, at the end of the day, you first want to have someone who is familiar with the process involved. Second, you want to make sure that if you're a landowner, your rights are protected, that the uses and restrictions are narrowly defined because the landowner retains every right except for those that are specifically given away in the easement. So you've got to make sure that's very clear.”

There are many benefits and reasons to set up a conservation easement, but the legal agreement between landowners and government agencies can also get complicated pretty fast.

Planning for Perpetuity

“The process itself can be rather daunting,” Chadwick says. “If you are a landowner and you are selling a conservation easement on your property, chances are you're using the property for certain things, and there is a quote from an old farmer that I represented and I think he encapsulated it perfectly. He said, ‘Conservation easements are in perpetuity and perpetuity is a long time. It’s forever.’”

In the case of that farmer, Chadwick helped him ensure he could continue using the property as he always had, while also engaging in a joint venture with a mitigation bank. “And that's always a tightrope you have to walk—making sure that the easement itself doesn't prohibit the things that you want to keep on doing, whether overtly or inadvertently. So what is it you want to do? What is it you think you may do in the future, or that your kids may want to do, or that your grandkids may want to do?”

The Worst-Case Scenario

If you set up an easement improperly, you could give agencies more rights to using your land and even restrict your own use.

“They want some things, and they want to prohibit certain activities, and you want some things,” Chadwick says. “And you don't want to have to argue about this in the future. For example, if you're a farmer, you don't want to argue if you can go ride over your ranch, or if you can go ride a quad out there, or whether you can create a road. You want to have these things defined and have a well-thought-out process to avoid any of the pitfalls. Because once you sign that easement and it gets recorded, that easement, those rights, they have the right to enforce that.”

Someone who is experienced in conservation easements also should know the players, and who is going to be friendly toward landowners. “There are certain easement holders who wouldn't know a cow from a jack rabbit and it's not going to go over well with a rural farmer who is ranching,” Chadwick notes. “You might come to loggerheads, and that's something you really want to avoid.”

Easements Involve Diverse Ventures

While Chadwick is primarily knowledgeable about land use and zoning, easements bring into the fold issues involving taxes, real estate, energy and natural resources, the environment, and agriculture.

“In addition, the legal landscape is constantly changing, whether it be administrative agencies and what they're looking for, or whether it be tax law that changes every couple of years,” Chadwick says.

When it involves tax law, for instance, even Chadwick will seek out an expert in that area.

“When it comes to making sure that you're covered under tax laws, you're going to want get an opinion letter from an expert tax attorney that this is an allowable write-off and get an opinion letter from them usually which provides you with some shelter from the state and federal tax authorities if they decide to challenge that easement,” he says.

How Long Does It Take, and How Much Does it Cost?

The paperwork itself can be simple, Chadwick says, but the complexity really depends on the circumstances and parties involved. Mitigation for an endangered species will involve state and federal wildlife departments, a corps of engineers, the county, plus the various signatories or beneficiaries.

“Sometimes you just never know what is going to crop up in terms of the various parties involved,” Chadwick says.

By contrast, a simple agricultural conservation easement may only involve the landowner and easement holder. “In that case, it's going to be a much easier, quicker and less expensive process because all you're doing is saying, ‘Look, I want to make sure my rights are protected with what I'm currently doing, make sure that I'm not prohibited from doing anything, that I'm getting paid the right amount, and that we’re going to get along,’” Chadwick says.

“Most lawyers who do this are working on an hourly fee basis,” he adds. “If it's a fairly clean process, I'm always open to discussing alternative fee arrangements like a flat fee or something—whatever works for a client. But generally speaking, the more complex, the less likely it is that you're going to find someone who is going to do it for a flat fee.”

For more information on land use and zoning law, see our overview.

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