If changes to a conservation easement are necessary or desirable, the easement holder must decide whether to amend and restate the grant of easement in full or simply amend it. This guide assists with that decision and points to resources to aid in implementation of the decision.
If a land trust intends to amend a grant of conservation easement, implementation of the changes requires careful planning and drafting. The consequences of poor execution range from missed opportunities to improve easement stewardship to inadvertent elimination of conservation protections.
The purpose of this guide is to assist the land trust that has decided to amend a grant of conservation easement in choosing whether to simply amend the document or amend and restate it in full.
Complementing this guide, WeConservePA publishes and posts at its library various guides addressing legal and policy considerations as well as best practices pertaining to the amendment of easement documents. WeConservePA also publishes model legal documents that can assist with making easement changes. For those who have decided to make changes to an easement and just need instruction in how to implement those changes, the following resources are most relevant:
For those who are still deliberating whether to make changes to an easement, WeConservePA publishes other resources at its library, including the Guide and Model Policy for Conservation Easement Amendment, to assist people in responsibly addressing the matter.
An amendment sets forth specific changes to a grant but otherwise keeps all of its provisions intact. A restatement of a grant substitutes an entirely new document for the original grant.
The easement holder may prefer restatement in the following circumstances:
The Supplemental Provisions to the Model Grant of Conservation Easement and Declaration of Covenants provide detailed instructions for using the model to accomplish an amendment and restatement of the original grant of easement. The instructions can help holders identify issues to address in a restatement whether or not they actually use the model. A key objective of the instructions is to ensure that the restatement supersedes but does not release the old document; if followed, the restated grant will retain the same priority and enforceability as the original grant.
The easement holder may prefer a simple amendment in the following circumstances:
The Model Amendment of Grant of Conservation Easement and Declaration of Covenants is an instrument for accomplishing a few simple changes to an easement.
If the owners wish simply to add additional land to the easement—keeping the same conservation objectives and imposing the same restrictions as under the original grant—a simple amendment would seem in order. However, neither an amendment nor an amendment and restatement are the preferred way to achieve that end. The better method is to record a separate grant then consolidate the two grants into one restated grant.
Why? First, for clarity on the public records: a title examiner searching the public records is sure to find a conservation easement granted on Parcel B (and the consolidation document) but may not discover that an amendment of an existing grant on Parcel A creates an easement over Parcel B. Second, to guard against a disastrous error: a separate document is certain to include a clause granting and conveying the easement on the additional land; this crucial language may be inadvertently omitted in an amendment.
The guide Adding to Land Under Conservation Easement describes three approaches to adding land and provides detailed instructions for accomplishing the addition.