It is easy to see why conservation easements have become tremendously popular land preservation tools. At the same time, some of the public policy concerns that argue against enforcement of other servitudes can be operative here as well. In particular, unease over long-term restrictions on land use is magnified in this case because federal income tax law allows a deduction for the gift of an easement only if it operates in perpetuity.
Perpetuity is a long time, and appropriate land use may change dramatically in the future. Conservation easements are also "in gross," meaning that they can be held by organizations that are not neighboring property owners. The original limitation of covenants to nearby owners reflected a concern that distant parties might be uninterested in or uninformed about local issues, with no necessary stake in promoting efficient land use and economic development.
They could also be difficult to locate if needed to release a covenant or servitude. Finally, there are troubling antidemocratic aspects of a system that permits private parties to impose perpetual land use restrictions without public oversight. These concerns are not grounds for recommending wholesale changes to the law of conservation easements, such as a restriction to type of ownership or a uniform limitation on duration.
These requirements would be too rigid a response, particularly when more time is needed to understand how well-founded such misgivings might be. Individual decisions informed by experience, rather than expansive rulemaking on the basis of abstract reasoning, is the greatest strength of our common-law heritage.
This approach permits courts to intervene selectively in the rare cases where the public interest may not support specific enforcement of an easement. This is already a familiar response in, for example, the law of nuisance, where individual awards may be limited to monetary damages alone. State attorneys general may also be able to exercise increased oversight and represent the public interest more actively as conservation easements come into ever-broader use.
Nonpossessory interests in property are as widespread as rights of way and as familiar as the covenants in a homeowners' association agreement. The enormous usefulness of these servitudes makes efforts to modernize and rationalize their application critically important.
At the same time, because their influence is felt in numerous facets of everyday life, judicial analysis of their legal effects provides a context within which to consider bedrock issues of public policy.
Joan Youngman is senior fellow and chairman of the Lincoln Institute's Department of Valuation and Taxation and an attorney who writes on legal aspects of property taxation policy and practice.
She has developed and teaches numerous Institute courses on conservation easements, land valuation techniques and the interaction of property taxation and public finance.
Skip to main content. User Log In Create Account. Easements, Covenants and Servitudes. Traditional Limitations and Future Trends. Joan Youngman. The New Restatement of Property Part of the complexity of nonpossessory rights stems from the numerous and often ambiguous distinctions among them in the common law. They fall within four traditional categories: An easement is a nonpossessory right in the land of another.
This followed our consultation, in response to which we received a large number of detailed responses. We published, at the same time as the report, a comprehensive analysis of those responses, as well as an impact assessment.
We subsequently completed a project on rights to light , a specific type of easement, in Are you OK with cookies? I am OK with cookies Only use essential cookies Choose which cookies we use. Close Choose which cookies we use Analytics cookies Off On. Essential cookies Always on. It is typically used to avoid you having to retype information when moving from one page to another.
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Read the Twitter Privacy Policy. How are we doing? They are usually registered on title and are binding upon successors in title and purchasers of the land. The land that gains the benefit of the easement is known as the dominant land, while the land subject to or burdened by the easement is called the servient land. A restrictive covenant is an agreement between land owners that limits the way land can be used and developed. The land where the restrictions apply is called the burdened land, and the land that benefits from the restrictions is called the benefited land.
Restrictive covenants are designed to enhance and protect the dominant land. Tisher Liner FC Law has been involved in numerous decisions where convenants have been removed and varied to allow significant developments to proceed.
Easements arising from prescription and even more those by necessity should be treated with considerable caution. Please note that this is for 30 minutes only and does not include advice in writing. We are able to offer fixed fees to both claimants and respondents in relation to Employment Tribunal claims. Please contact us for specialist advice and further details. Advising employee on an Acas Early Conciliation Notification now an essential first step before lodging an employment claim.
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