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Commercial Use Provisions in Easement Drafting and Interpretation

90 minutes
Recorded 2/25/2021
Instructors: Ellen Fred, Misti Schmidt

For so long, conservation easements have categorically prohibited commercial activities. This approach certainly made for simpler drafting, but failed to consider whether the commercial nature of an activity made such activity inconsistent with the conservation purposes of the easement. Does the exchange of currency necessarily render an activity inconsistent with the conservation purposes? Or, rather, should we consider the effect of the activity on the land and its conservation values rather than whether the activity was commercial or not? When we consider perpetuity, prevailing wisdom now asks us to build in flexibility so that landowners are able to survive on the land while ensuring that the conservation values of the land are protected.

Commercial use language poses challenges for stewardship as well. Are cell towers okay on easement lands? How about weddings? Or roadside farmstands? With land uses evolving, land trusts are learning that the types of commercial uses that landowners might propose on easement lands can’t always be predicted, particularly as more easements are placed on working lands.

Join conservation attorneys Ellen Fred and Misti Schmidt as they tackle the complexities of commercial use language in easement drafting and stewardship.

Here’s a look at what we will cover:

• How to draft your commercial use provisions to be resilient in the face of changing uses, while protecting the conservation purpose of the conservation easement forever.
• How to interpret old commercial use provisions that most likely are not specifically on point for today’s requests, all while respecting your duties as a tax-exempt organization and an accredited land trust.

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