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FAQ: Model Grant of Conservation Easement and Declaration of Covenants 7th Edition

Published by the Pennsylvania Land Trust Association

This article provides users with a state-of-the-art legal document and guidance to customize it to nearly any situation. No conservation easement document has benefited from more real-world testing, user scrutiny, and cycles of peer review.

The Model Grant of Conservation Easement and Declaration of Covenants with Commentary provides users with a state-of-the-art legal document and guidance to customize it to nearly any situation. The model is informed by many years of regular and heavy use by land trusts, governments, and landowners across Pennsylvania and across the nation.

The model’s expansive commentary explains the reasoning behind every provision, instructs on applying the model to particular circumstances, and provides alternative and optional provisions to address a variety of variables.

The model uses plain language and careful formatting to improve readability. Its flexible structure helps users avoid drafting errors when adapting it to their particular projects. The model provides for three levels of protection to deal with variations in conservation objectives across a property, but one or two levels can easily be removed for use with simpler projects.

The model is tailored to Pennsylvania state law, and the Pennsylvania Department of Conservation and Natural Resources requires its use for DCNR grant projects. It has been applied to numerous local government and federally-funded projects and has been adapted for use in states from Arkansas to Alaska.

When in Doubt, Check the Commentary. The purpose of each provision is explained and, often, variations are provided to address alternatives that may be useful in particular situations.

Guides. Unless otherwise noted, all guides and model legal documents referenced in the commentary are published by the Pennsylvania Land Trust Association and made available at no charge at Conservation-Tools.org.

Structure Tracks Model. The main body of the commentary follows the same article and section structure as the model. Captions preceded by numbers or letters refer to articles or sections of the same title in the model.

Supplemental Provisions. The supplemental provisions that follow the main body of the commentary cover content that: (1) if placed under a particular section of the commentary might be lost to the casual reader, (2) is too large and unwieldy to place in the main body, or (3) applies to multiple sections of the model.

Style Guide. Many of the style choices shaping the look and content of the model and commentary are described in the style guide that precedes the supplemental provisions.

Start from a Model. Each Holder should feel free to create its own version of the model by incorporating additional or alternative provisions (from the commentary or otherwise) that reflect the policies and preferences of that Holder. That version or the then current version of the model available at ConservationTools.org should be used as the starting point for each project. Avoid using a document prepared for another project as a starting point for a new conservation easement. A model serves in part to remind users of the issues that need to be considered in the drafting process. The value of a model is lost, and errors and omissions become virtually guaranteed, when a document prepared for another property is used as a starting point for a new conservation easement.

Standards and Practices. Organization considering holding conservation easements should be aware of the guidelines contained in Land Trust Standards and Practices (referred to in this commentary as “S&P”). These voluntary standards and practices maintained by the Land Trust Alliance draw on decades of experiences and lessons learned by organizations across the country. The commentary’s citations of S&P reference the 2017 edition of S&P.

Get Legal Counsel. The model and commentary should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The model must be revised to reflect the specific circumstances of the particular project under the guidance of legal counsel. S&P Practice 9.A.1. calls for land trusts to: Obtain a legal review of every land and conservation easement transaction, appropriate to its complexity, by an attorney experienced in real estate law.

Disclaimer Box. Once a document based on the model has been prepared or reviewed on behalf of Holder by an attorney licensed to practice law in the applicable state, you may delete the box at the bottom of the model’s signature page that begins “The model on which this document is based should not be construed or relied upon as legal advice….”

Other States. Users outside of Pennsylvania need to take care to modify the model to account for differences in state laws.

Identify Changes and Streamline Review. An advantage of the model is the streamlining of reviews. Widely used software enables users to quickly identify modifications in the terms set forth in the model. Microsoft Word provides you the capability to track modifications made to the model or compare a modified document to the original document. Search under Word’s Help menu for the terms “track changes” or “compare documents” for instructions specific to the particular version of the software.

Updates. Check ConservationTools.org periodically for updates to the model.

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Published February 2017

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