Can a Conservation Easement be Modified or Terminated?

Can a Conservation Easement be Modified or Terminated?

 

Can a Conservation Easement be Modified?

Recognizing that the land, players and surrounding circumstances will change over time, there is a limited ability to amend a conservation easement.
The Conservation Easements Act provides that the conservation easement itself can be amended by agreement between the grantor and grantee. Even in those cases where amendments are made, the conservation easement is still in place to protect the land it is tied to so restrictions will still be enforced in the interest of the land.
When the need for a change in the conservation easement is reflected more in the operations and practices (unexpected vegetation invasions, change in the working landscape operation, etc.) than the core structure of the agreement, changes may be made more efficiently through the management plan.
Regardless of the changes made, the parties need to be aware that there could be financial implications. If the conservation easement was certified as a gift of ecological property, the tax advantages provided may be affected and claw back requirements can be significant.  Any change in use must be approved before hand by the federal Minister of Environment and Climate Change.

 

Can a Conservation Easement be Terminated?

There is also a provision in The Conservation Easements Act for conservation easements to be terminated. Similar to amendments, this can only be done by agreement between the parties (CE holder and the landowner) or by the Court of Queen’s Bench by application for two reasons: where the court is in the opinion that the easement would produce a severe hardship for the applicant or the CE holder ceases to exist.
As with amendments, implications would include potential tax claw backs and loss of reputational capital. For a termination these would obviously be much more significant. It is important to note a termination could conceivably happen for conservation reasons. For example, amendments that would update and improve the conservation capacity of the CE are so significant that removing the existing CE and starting again is seen as the better route. Such actions would be controversial and precedent setting, and would not be considered lightly.