Conservation easements are amassing increasing popularity as a private means for accomplishing a public good. In 1980, conservation easements protected 128,001 acres. By 2003, that number had jumped to over 5 million acres. In Georgia, over 131,000 acres had been protected by conservation easements by the end of 2005, more than double the acreage of just a few years before.
A conservation easement is a legal arrangement whereby a landowner chooses to transfer certain development rights to an eligible easement holder, usually a non-profit or government agency, in order to achieve a qualified purpose. The landowner can sell or donate these development rights. If the easement is made in perpetuity and is either donated or transferred in a “bargain sale,” the landowner may be eligible for federal income tax, estate tax, state income tax, and property tax deductions.
In states such as Georgia, conservation easements can exist in perpetuity or be limited to a term of years. The rising popularity of conservation easements makes the distinction between perpetual and fixed-term easements ever more important.
Evaluating the advantages and disadvantages of perpetual as opposed to fixed-term easements is not as simple as simply looking at the landowner and the easement holder. The stakeholders in a conservation easement transaction may also include multiple levels of government, the public, future purchasers of the burdened property, abutting and nearby neighbors, developers, and the environment itself. Weighing the costs and benefits to each of these stakeholders gives a more complete picture of the risks and opportunities that perpetual easements provide.
The argument in favor of a policy preferring perpetual conservation easements will proceed as follows: First, the memo will discuss the benefits of perpetual conservation easements from the standpoint of each of the stakeholders. Second, the memo will outline the downside to each stakeholder. Third, the memo will conclude that the upside of perpetual easements far outweighs the downside, and recommend that landowners and governments continue to use perpetual easements to conserve land.
Mitchell, Paul, "Protecting the Future Forever: Why Perpetual Conservation Easements Outperform Term Easements" (2006). Land Use Clinic. 10.