Arkansas Land Conservation Assistance Network

In the past decade, land use policies in the United States have been subject to a considerable shift in emphasis. Although traditional uses of land for industrial, commercial, residential and agricultural purposes have continued, conservation and historic preservation have become important as well. In the effort to accommodate sometimes conflicting interests, various kinds of land use controls have developed from state to state, jurisdiction to jurisdiction.

Property law, though, has always favored ownership. If you want a specific use, the best way to obtain it is to acquire a sufficient interest in the land to ensure it. Therefore, acquiring interests for conservation purposes and historical preservation has assumed considerable importance. Obviously, purchasing the fee interest is absolute insurance. But it is not necessary, nor economically advantageous, nor efficient land use, to limit acquisitions to fee interests. For example, a building may preserve its historic value to the community while still serving commercial or residential purposes. A farm may remain a farm in active private production, even though the farmer-owner agrees to restrict activities in certain ways for wildlife habitat. Therefore, considerable interest in easements, covenants and restrictions and equitable servitudes, all rooted in common law property principles, has been shown in many jurisdictions. That interest is exhibited in legislation, judicial action and agency activities from state to state.

The acquisition of interests in land conforms, also, to the typical American resistance to imposed land use controls, zoning restrictions and the exercise of eminent domain. Acquisition of interests depends upon voluntary acts of landowners, who may give or sell interests in land for specific benefits to their own self-interest. These benefits include the receipt of a fair prize and/or tax advantages, depending on the jurisdiction.

However, there are historical legal impediments to the acquisition of lesser interests, such as easements, restrictions and covenants, and equitable servitudes. These restrictions appear artificial and archaic in light of current policies, and the Uniform Conservation Easement Act provides the means to eliminate them in a simple, straightforward fashion.

There are two problems with the common law. The law has always favored easements or restrictions or servitudes appurtenant, or ones that serve a dominant estate or land holding. An example is an easement over a parcel of land A, which provides access to a road for a second parcel of land B. A is the servient estate, and B the dominant estate. The easement will run with the land, that is, the owner of A cannot convey it and extinguish the easement over A in B's favor.

The law has not favored interests "in gross", however. Such an interest does not serve a dominant estate, and although it may be good between the original parties to its conveyance, it is not likely to survive any second transfer, however made. Most interests for historic preservation or conservation protection fall into this "in gross" category.

The second problem concerns affirmative versus negative easements or restrictions or servitudes. An affirmative easement allows others to use a piece of land in a particular way. A right-of-way for public travel is an example. A negative easement restricts the owner from certain uses of his own land. Again, the law favors the continuity and permanence of affirmative easements, but has disfavored, historically, negative easements.

Courts disfavor interests conveyed "in gross" and negative easements because they can cloud title, and they may raise recordation problems. Notice to future landholders is the difficulty. However, legislation with proper recordation requirements and limitations upon those who may hold these kinds of interests overcomes these objections. Also, recording techniques are improving in the U.S., and the spread of Marketable Title Acts (see Uniform Simplification of Land Transfers Act, Sections 3-301 to 3-309) removes much of the problem of "ancient restrictions."

The Uniform Act deals only with easements. It does not try to incorporate other kinds of interests, such as restrictions or covenants in deeds, and equitable servitudes. One concept which can achieve the necessary goal is all that is necessary. An easement is a "non-possessory interest . . . in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic or open-space values of real property, assuring its availability for agricultural, forest, recreational or open-space use, protecting natural resources, maintaining or enhancing air or water quality or preserving the historical, architectural, archeological or cultural aspects of real property." The concept is suitably limited to the need.

Only two kinds of entities can hold easements under the Uniform Act. These entities are charitable organizations with the purposes of holding interests in land for conservation or historic preservation, or governmental bodies empowered to hold an interest in real property. Thus, there is a strict limitation upon the types and qualities of holders.

An easement is treated as any other interest in land except for these limitations. However, no easement arises until a prospective holder records an acceptance of the easement. This precludes any unilateral creation of easements.

An easement remains valid even though it is not appurtenant, and even though it imposes a negative burden. No privity of contract, or effect on a dominant estate, is required. One holder may assign an easement to another holder qualified under the Act. An easement is perpetual, unless its terms provide for a limitation in time. In short, all the common law impediments are avoided.

A unique feature of the Act is the "third-party enforcement right." An easement may empower an entity other than an immediate holder to enforce its terms. The "third-party" must be a charitable organization or governmental body eligible to be a holder. One organization may own the easement, but delegate enforcement to another, if the terms of the easement allow it.

The Uniform Conservation Easement Act provides a simple, limited way to end impediments to the use of easements under the common law. It permits the acquisition of easements as limited interests in land with the minimum disturbance of other interests and uses. It does not force anybody to do anything, but, if it appears advantageous as a matter of gift, sale or other conveyance for the landowner to transfer an easement, the Uniform Act assures its validity. This conforms to the general American desire for non-compulsory, voluntary solutions to land use problems, and the Uniform Act should greatly assist the effort to encourage conservation practices and to protect historically significant sites.

Read the Act in its entirety here.