A parcel of land being considered for an easement may have a mortgage from a lending institution. This results in the lending institution having an interest in the property. In the event of a mortgage foreclosure, the conservation easement is at risk as it may have a lower priority on the title. It may be advisable to seek a mortgage postponement to ensure the conservation easement will survive the foreclosure. Most land trusts have a standard mortgage postponement request form.
Signing a CE in perpetuity may affect your resale value and what future owners can do in terms of developing yard sites, cultivation, use of chemicals, as well as commercial, residential, and industrial development.
Check with your financial institution about whether a CE will affect your ability to use the land as collateral. A CE is an encumbrance (a charge or lien on the property).
Make sure you know who has access to the lands to which the CE applies and who will conduct the monitoring of the CE. In most cases, the grantor controls all access. Details on conditions and restrictions in the CE usually allow the grantee access to monitor the land parcel. Other parties’ access to the land in question should be arranged with the grantor through advance notice.
Restrictions lists should determine whether the CE allows flexible management to work around droughts and other natural disasters.
Make sure you are involved in the development of the CE so that you are aware of and have a say in the types of activities allowed on the land parcel and the restrictions that are included in the CE. These are negotiated between the landowner and the organization that will hold the CE. Any land use that does not compromise the integrity of the natural habitat may be allowed. Examples include: hunting, outfitting, ecotourism, grazing, hay storage, water development, fence construction and trail development.
Make sure you know what activities are restricted. Examples include: cultivation, introduction of tame forage species or noxious weeds and residential, commercial and industrial development. Limits can be put on commercial logging, yet timber and firewood can be removed for personal use. A CE does not necessarily restrict approved development projects such as mineral exploration.
In most cases yard sites should be excluded within the CE.
It’s your responsibility to manage the land to maintain the its condition and conservation values as documented in the baseline report. Likewise, it is important for the grantee to conduct monitoring on a regular basis to confirm the management practices are maintaining the ecological integrity of the land consistent with the conditions of the land as described in the baseline report . The grantor will want to include provisions in the CE related to monitoring of the CE.
Determine who benefits from the Ecological Goods and Services derived from the land, as well as who receives the monetary credits from possible greenhouse gas mitigation, carbon sequestration, native prairie biodiversity and endangered species protection.
