Restrictions for land conservation

by Nancy
(Virginia)

Visitor Question: I'm selling a small piece of property which has a house on it. I'm also planning to deed a 2-acre piece of land to my sister.

I am an environmentalist and would like to put restrictions on both deeds geared toward land preservation.

There is a creek on the property that I'm planning to deed to my sister so I'd like to restrict removal of trees that provide a buffer for protection of the water. I want to disallow any dumping or disposal of trash on the properties. I also do not want any commercial or residential development of the property or any subdivision of the property which would result in commercial or residential development. I'd also like to restrict any changes to the fundamental lay of the land. I'd like the land to remain rural in nature and the land is in an area where there are lots of subdivisions. Any feedback would be appreciated.

Editors Respond: That sounds like a great move, Nancy. Our overall advice is to think carefully about the future impact of your restrictions, and to consult a good attorney who is accustomed to dealing with land use or environmental issues.

Also check out the page on our website that is geared toward conservation easements.

We have just a few comments. You probably would want to make sure that the restriction does not prohibit reconstruction of the house on the lot that currently has a house. It might be damaged beyond repair by fire or storm. You also might want to consider limiting the type or number of outbuildings that can be constructed on that lot.

Also be careful about the way you ban tree removal. You may want to make an exception if a tree becomes dangerous, diseased, and so forth. Can (or must) a damaged or fallen tree be replaced with one new tree or not? Do you want to limit the tree species that can be planted within the creek buffer? Do you want to specify the width of the creek buffer? How is that buffer measured, if not specified in federal or state law? What happens if this creek changes its course in time?

By the way, who is going to enforce these restrictions? For example, if someone is dumping on their own property in 40 years, who will have legal standing to ask a court to enforce the deed restrictions?

Can one house be built on the 2 acres you are planning to deed to your sister? Be careful with prohibiting "residential development" if you want to allow one house. It would be better to say no more than one single-family home, garage, and shed of no more than xxx square feet, for example.

You will need to define fundamental changes to the lay of the land. You may have to have a percentage of grade change that is allowed as part of the construction process. Again, who will enforce that? Perhaps this land lies within a county, town, or village that has some land use regulations and building codes. Their inspectors might be considered an appropriate party for specifying the amount of grade change. Maybe you have something more specific in mind when you say lay of the land, and if so, that should be spelled out.

We think that if you do a good job with making your language as specific as possible, and having a credible enforcement mechanism figured out, you will accomplish your intended result of having the land remain rural in nature.

Since future enforcement is a thorny issue here, you may want to talk with a conservation organization that could receive an easement from you; pick one that is likely to be in existence in 40 or 50 years.

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