Pictured: An eastern redbud in full bloom in Prince Edward County, Virginia. Conservation easements do a lot to preserve the natural beauty of Southside Virginia, but owning a property with a conservation easement on it isn’t right for everyone. Let the conservation easement attorneys at Hawthorne & Hawthorne make sure that purchasing a property encumbered by a conservation easement won’t conflict with your plans for the property.
What Do You Look for When Buying Real Estate that Is Encumbered by a Conservation Easement?
You have your heart set on buying a certain piece of real estate. But then you find out that it has a conservation easement on it. How do you know whether or not the conservation easement will cause problems for you? Potential purchasers of real estate are increasingly having to ask themselves that question as conservation easements become more and more common in Southside Virginia.
There is no one-size-fits-all answer to that question. Different people looking at buying the same conservation property will have different concerns. Really, the best way to answer that question is by asking another question: What are your goals for the property? In other words, what are your intended uses for the property? Only by determining how you want to use the property can you determine whether or not the conservation easement is a good fit for you.
With that in mind, let’s go over some of the most common goals that potential purchasers have and some of the most common pitfalls in conservation easements that can thwart each goal. Just as each purchaser is different, each conservation easement is different, and so this list is necessarily broad and generalized. We hope that this list will be helpful in guiding your questions, but nothing quite substitutes for having an experienced conservation easement attorney listen to your concerns and explain how the conservation easement does or does not fit your plans for the property.
If Your Goal Is to Subdivide the Property
If you wish to subdivide the property, you will need to examine the provisions of the conservation easement that limit the number of times that the property may be divided and that limit the number of houses that may be built on the property. Most conservation easements severely limit subdivision—or even prohibit subdivision entirely. If subdivision is permitted, typically the property will be most amenable to large-lot subdivision.
If Your Goal Is to Build a House on the Property
If you wish to build a house on the property, you will need to examine the provisions of the conservation easement that limit how many houses may be built on the property, how large the houses may be, and where on the property the houses may be located. For example, many conservation easements will require houses and other large buildings to be set back from the public road by a certain number of feet. Some conservation easements go a step further and specify that houses may be placed only on certain locations on the property (“building envelopes”). In rare cases, the conservation easement might even prohibit houses from being built on the property at all.
If Your Goal Is to Farm the Property
If you wish to farm the property, you will need to examine the provisions of the conservation easement that limit how large farm buildings may be and where on the property the farm buildings may be located. For example, many conservation easements will require large buildings to be set back from the public road by a certain number of feet. Some conservation easements go a step further and specify that buildings may be placed only on certain locations on the property (“building envelopes”). In rare cases, the conservation easement might even prohibit buildings from being built on the property at all.
Additionally, if the conservation easement was donated to the Virginia Department of Forestry, you will need to examine the provisions of the conservation easement requiring a portion of the property to remain forested.
Finally, if you wish to have livestock on the property, you will need to examine the provisions of the conservation easement setting forth fencing requirements.
If Your Goal Is to Harvest Timber on the Property
If you wish to harvest timber on the property, you will need to examine the provisions of the conservation easement concerning forestry. In rare cases, the conservation easement might prohibit commercial timber harvests, but most conservation easements do allow for commercial timber harvests with certain limitations. For example, nearly all conservation easements will require you to adhere to best management practices (BMPs) when cutting trees.
Note that many conservation easements will require no-cut zones along certain streams or wetlands (instead of allowing you to cut 50% of the canopy like you would be able to do under the BMPs), so be sure to look at those provisions, too.
Additionally, many conservation easements will require you to submit a preharvest plan and / or a forest stewardship management plan for approval before you will be allowed to harvest timber.
If Your Goal Is to Use the Property for Commercial Recreational Use
If you wish to use the property for commercial recreational use (such as a vineyard used as a wedding venue), you will first need to determine that the conservation easement does not prohibit commercial recreational use. (Some do.)
If commercial recreational use is in fact permitted, you will need to examine the provisions of the conservation easement that limit how large your desired type of building may be and where on the property buildings may be located. For example, many conservation easements will require large buildings to be set back from the public road by a certain number of feet. Some conservation easements go a step further and specify that buildings may be placed only on certain locations on the property (“building envelopes”). In rare cases, the conservation easement might even prohibit buildings from being built on the property at all.
If Your Goal Is to Use the Property to Generate Alternative Energy
If you wish to place a solar farm or a wind farm on the property, you will need to examine the provisions of the conservation easement concerning alternative energy structures. Be aware that most conservation easements prohibit commercial power generation from taking place on the property, even if it is “clean” energy like solar power or wind power. (Most conservation easements do permit you to install solar panels or small wind turbines for your own personal use.) If the conservation easement does permit commercial power generation using alternative energy, you will need to examine the provisions of the conservation easement limiting the size, height, and siting of the alternative energy structures.
If Your Goal Is to Place a Cell Tower on the Property
If you wish to place a cell tower on the property, you will need to examine the provisions of the conservation easement concerning cell towers. Most conservation easements prohibit cell towers from being built on the property. The few conservation easements that do permit a cell tower to be built on the property will usually place restrictions on the maximum height of the tower and will restrict where on the property it may be built.
If Your Goal Is to Mine or Drill on the Property
If you wish to mine sand, gravel, or ore from the property, or if you wish to extract oil or natural gas from the property, you will need to examine the provisions of the conservation easement concerning mining and drilling. Many conservation easements prohibit mining or drilling of any sort, even if you slant-drill from the surface of an adjacent property. Other conservation easements will prohibit mining or drilling from the surface of the property but will permit slant drilling from the surface of an adjacent property. Still other conservation easements will permit mining or drilling from the surface of the property, but with other restrictions.
Let Our Experienced Conservation Easement Lawyers Help You Meet Your Goals for Your New Property!
These are only some of the most common concerns that potential buyers might have when deciding whether or not to buy a property encumbered by a conservation easement. You might have other concerns. Let us emphasize that buying real estate encumbered by a conservation easement does not cause problems for the majority of landowners—but you need to do your due diligence before buying the property to make sure that it fits your plans for the property.
The conservation easement lawyers at Hawthorne & Hawthorne are available to assist potential buyers of conservation easement properties in Amelia County, Appomattox County, Buckingham County, Brunswick County, Campbell County, Charlotte County, Cumberland County, Dinwiddie County, Halifax County, Lunenburg County, Mecklenburg County, Nottoway County, and Prince Edward County.
If you are considering whether or not to purchase a property that is encumbered by a conservation easement, contact one of the experienced conservation easement lawyers at Hawthorne & Hawthorne today!
