There is a tongue in cheek definition of perpetuity in the land trust community that reads like this; Perpetuity: a Really Long Time. The joke is on us so to speak. When a land trust accepts a conservation easement, it accepts an obligation to monitor and enforce the terms of the conservation easement perpetually (a.k.a. forever). This stems in part from the logic that land lasts forever—therefore the most effective way to preserve it also has to last forever. In addition, the tax benefits to landowners from donating a conservation easement require the easement to be perpetual. This perpetual nature of conservation easements creates not only unique circumstances for easement-holding entities like Montezuma Land Conservancy (MLC), but also the requirement that we remain a viable organization for the long term.

One of the challenges we face is when an easement-protected property changes ownership. The original landowners who convey an easement usually notice little change in owning land with a conservation easement. The annual property visit by land trust staff is unobtrusive and expected; the terms of the easement were agreed upon and therefore not a surprise; they can sell the property; pass it to heirs; or take out a loan on the property.

So what happens when land changes hands to new owners who had no part in the original easement? The recent sale of an easement encumbered property in McElmo Canyon sparked conversations about the unique requirements of conservation easement properties. In this case, it took over a year to sell the property (it is difficult to say if the market or the easement was the primary reason for the listing time). In this case, the listing agent was aware of the easement and informed interested buyers of its existence. Ideally, future owners of easement properties agree with the principles of the easement and keeping the property as open space. But even among this pool of buyers, certain easement terms may not be in keeping with their vision, and they often ask if the easement can be changed. Easements generally cannot be amended or changed, so subsequent buyers have to be comfortable with the terms as written. While these restrictions can limit the pool of potential buyers, the reduced value of the property—sometimes 20%-60% less than similar unencumbered properties—can increase the pool of potential buyers because it is more affordable.

For land trusts, changing ownership creates uncertainty. Will the new owner challenge the easement restrictions and pose a threat to the conservation values? In other parts of the country, new owners have ignored easement provisions by building prohibited buildings, or building permitted structures in the wrong place. This is why MLC makes a concerted effort to meet new owners and review the easement carefully so the terms are understood. Our goal is to avoid conflict and build a positive working relationship with landowners to minimized potential conflicts in the future.

Regardless of who owns the property, MLC’s obligation to steward the conservation easement is forever. The common misconception that a land trust can sell its easements when it wants to unburden itself of the obligation to monitor and enforce them is simply not true. The easements themselves have no marketable value since the majority of development rights are extinguished at the time the easement is conveyed. Extinguishing the development rights is the primary mechanism for preserving the scenic, habitat and agricultural conservation values. The land trust now has an obligation to monitor and enforce a conservation easement that has no financial value. Thus easements are liabilities, not marketable assets. In the unlikely event that MLC need to transfer its easements, it must find an appropriate and qualified entity to receive our easements and the accompanying responsibilities.

Stewarding these easements over time has costs, so MLC maintains a stewardship fund that is added to each time a conservation easement is accepted. These funds are either donated by the easement donor or raised by MLC, and they are managed and used specifically for monitoring and defending our easements in perpetuity.

Because of these perpetual responsibilities, land trusts take a very long range view of organizational sustainability. This is why fundraising and development are so important to MLC. We are not only planning for current expenses, but we are also planning for a vibrant and effective organization into the foreseeable future that can continue to monitor and enforce the conservation easements that we have accepted and now have the obligation to steward.