Title: Use of Conservation Easements in Florida
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 Material Information
Title: Use of Conservation Easements in Florida
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Use of Conservation Easements in Florida, L.M. Buddy Blain, January 4, 1995
General Note: Box 8, Folder 5 ( Vail Conference, 1995 - 1995 ), Item 20
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001406
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

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Use Of Conservation Easements In Florida


The "conservation easement" is a relatively new property law term in
Florida statutory law, having first been defined by the state legislature
in 1976. See chapter 76-169, Laws of Florida. Use of conservation
easements at first was been slow but is rapidly increasing due to more
aggressive land acquisition activities of governmental bodies and
agencies, charitable corporations and trusts, and as voluntary
"extractions" demanded by government agencies in regulatory
permitting and enforcement proceedings.

When enacted, section 704.06, Florida Statutes, provided that
"conservation easement" means a perpetual, undivided "right or interest
in real property which is appropriate to retaining land or water areas
predominantly in their natural, scenic, open, or wooded condition,
retaining such areas as suitable habitat for fish, plants, or wildlife, or
maintaining existing land uses and which prohibits or limits" certain
ennumerated activities which involve altering the present use or state of
the land or water areas. See 20 Fla. Jur. 2d at p. 340.

The initial law specifically provided that conservation easements

1. are perpetual undivided interests in property

2. may be created or stated in the form of a restriction,
easement, covenant, or condition in any deed, will,
or other instrument executed by or on behalf of the
owner of the property, or in any order of taking

3. may be acquired in the same manner as other interests
in property are acquired, except by condemnation or by
other exercise of the power of eminent domain

4. shall not be unassignable to other governmental bodies
or agencies, charitable organizations, or trusts authorized
to acquire such easements for lack of benefit to a
dominant estate

5. may be acquired by any governmental body or
agency, or by a charitable corporation or trust whose
purposes include the conservation of land or water areas
or the preservation of buildings or sites of historical or
cultural significance



1./.7








6. shall run with the land and be binding on all
subsequent owners of the servient estate

7. may be enforced by injunction or proceeding in equity
or at law

8. shall entitle the holder of it to enter the land in a
reasonable manner and at reasonable times to assure
compliance

9. may be released by the holder of the easement to the
holder of the fee even though the holder of the fee may
not be a governmental body or a charitable corporation or
trust


10. shall be recorded and indexed in the same manner as
any other instrument affecting the title to real property

In 1986, the legislature expanded the definition of "conservation
easement" to specifically include "sites or properties of historical,
architectural, archaeological, or cultural significance." See Chapter 76-
169, Laws of Florida, amending section 704.06, Florida Statutes.

In 1993, the legislature made several other very significant
changes.

1. It further broadened the term "conservation
easement" to specifically include "retaining land or
water areas predominantly in their agricultural .
condition .."

2. It expanded the purposes for which conservation
easements may be acquired to specifically include
"protecting natural, scenic, or open-space values of
real property, assuring its availability for
agricultural, forest, recreational, or open-space use,
protecting natural resources, maintaining or
enhancing air or water quality. .. ."

3. It added a provision that "conservation easements
may provide for a third-party right of enforcement"
and defined a third-party right of enforcement to
mean "a right provided in a conservation easement to
enforce any of its terms granted to a governmental
body, or charitable corporation or trust ... which



1. 2.8








although eligible to be a holder, is not a holder."


4. It specifically enumerates the parties who may bring
legal actions affecting a conservation easement.

5. It added a provision that the "ownership or attempted
enforcement of rights held by the holder of an
easement does not subject the holder to any liability
for any damage or injury that may be suffered by any
person on the property or as a result of the condition
of the property encumbered by a conservation
easement."

See Chapter 93-206, Laws of Florida, amending Section 704.06,
Florida Statutes. (See current section 704.06, attached.)

Under the present statute, a property owner may convey away as much
of the development rights of the property as desired. The extent of
restriction on the future use of the property is limited only by the
imagination of the drafter of the document.

Furthermore, certain tax advantages may be afforded owners of real
property who grant conservation easements. The Internal Revenue
Code provides for a tax deduction when a conservation easement has
been granted to certain qualified grantees.

Section 704.06, Florida Statutes, provides that the recording of a
conservation easement is notice to the property appraiser and the tax
collector of the easement, and section 193.501, Florida Statutes,
specifically provides the manner in which property appraisers shall
assess lands which are subject to a conservation easements.

However, the prospective grantor must remember that (1) the
easement is perpetual, (2) it may not be unassignable to other
governmental bodies or agencies, charitable organizations, or
trusts authorized to acquire such easements, (3) it runs with the
land and is binding on all subsequent owners, (4) it may be
enforced by injunction or proceeding in equity or at law, and (5) it
may provide for a third-party right of enforcement even though
the third-party is not a holder of the easement.


L. M. Buddy Blain
Blain Bricklemyer & Smolker, P.A.
Tampa, FL 33602
January 4, 1995



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Ch. 704 EASEMENTS P.S. 1992


704.06 Conservation easements; creation; acquisi-
tion; enforcement-
(1) As used in this section, "conservation easement
means a right or interest in real property which is appro-
priate to retaining land or water areas predominantly in
their natural, scenic, open, agricultural, or wooded con-
dition; retaining such areas as suitable habitat for fish,
plants, or wildlife; retaining the structural integrity or
physical appearance of sites or properties of historical,
architectural, archaeological, or cultural significance; or
maintaining existing land uses and which prohibits or
limits any or all of the following:
(a) Construction or placing of buildings, roads,
signs, billboards or other advertising, utilities, or other
structures on or above the ground.
(b) Dumping or placing of soil or other substance or
material as landfill or dumping or placing of trash, waste,
or unsightly or offensive materials.
(c) Removal or destruction of trees, shrubs, or other
vegetation.
(d) Excavation, dredging, or removal of loam, peat,
gravel, soil, rock, or other material substance in such
manner as to affect the surface.
(e) Surface use except for purposes that permit the
land or water area to remain predominantly in its natural
condition.
(f) Activities detrimental to drainage, flood control,
water conservation, erosion control, soil conservation, or
fish and wildlife habitat preservation.
(g) Acts or uses detrimental to such retention of land
or water areas.
(h) Acts or uses detrimental to the preservation of
the structural integrity or physical appearance of sites
or properties of historical, architectural, archaeological,
or cultural significance.
(2) Conservation easements are perpetual, undi-
vided interests in property and may be created or stated
in the form of a restriction, easement, covenant, or con-
dition in any deed, will, or other instrument executed by


or on behalf of the owner of the property, or in any order
of taking. Such easements may be acquired in the same
manner as other interests in property are acquired,
except by condemnation or by other exercise of the
power of eminent domain, and shall not be unassignable
to other governmental bodies or agencies, charitable
organizations, or trusts authorized to acquire such ease-
ments, for lack of benefit to a dominant estate.
(3) Conservation easements may be acquired by v
any governmental body or agency or by a charitable cor-
poration or trust whose purposes include protecting nat-
ural, scenic, or open space values of real property,
assuring its availability for agricultural, forest, recre-
ational, or open space use, protecting natural resources,
maintaining or enhancing air or water quality, or preserv-
ing sites or properties of historical, architectural, archae-
ological, or cultural significance.
(4) Conservation easements shall run with the land
and be binding on all subsequent owners of the servient
estate. No conservation easement shall be unenforce-
able on account of lack of privity of contract or lack of
benefit to particular land or on account of the benefit
being assignable. Conservation easements may be
enforced by injunction or proceeding in equity or at law,
and shall entitle the holder to enter the land in a reason-
able manner and at reasonable times to assure compli-
ance. A conservation easement may be released by the
holder of the easement to the holder of the fee even
though the holder of the fee may not be a governmental
body or a charitable corporation or trust.
(5) All conservation easements shall be recorded
and indexed in the same manner as any other instru-
ment affecting the title to real property.
(6) The provisions of this section shall not be con-
strued to imply that any restriction, easement, covenant,
or condition which does not have the benefit of this sec-
tion shall, on account of any provision hereof, be unen-
forceable.
(7) Recording of the conservation easement shall be
notice to the property appraiser and tax collector of the
county of the conveyance of the conservation easement.
(8) Conservation easements may provide for a third- /
party right of enforcement. As used in this section,
third-party right of enforcement means a right provided
in a conservation easement to enforce any of its terms
granted to a governmental body, or charitable corpora-
tion or trust as described in subsection (3), which
although eligible to be a holder, is not a holder.
(9) An action affecting a conservation easement
may be brought by:
(a) An owner of an interest in the real property bur-
dened by the easement;
(b) A holder of the easement;
(c) A person having a third-party right of enforce-
ment; or
(d) A person authorized by another law.
(10) The ownership or attempted enforcement of
rights held by the holder of an easement does not sub-
ject the holder to any liability for any damage or injury
that may be suffered by any person on the property or
as a result of the condition of the property encumbered
by a conservation easement.
HWi r.-- 1, oh. 76-16-: i. oh. 86-44; s 74. 4. 93-206.


1094



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Ch. 704


EASEMENTS


F.S. 199l




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