Conservation Easement Model Deed

This Conservation Easement Model Deed may be viewed as a PDF document.

Numbers in brackets [#s] in this document refer to notes at the end.

This Deed of Conservation Easement ("Deed") is granted on this ___day of _________, 200__, by _________________________ [1], having an address at _____________________________, (the "Landowner") to the New Mexico Land Conservancy, a New Mexico nonprofit corporation, having an address at P.O. Box 6759 Santa Fe, New Mexico 87502 (the "Land Trust"), for the purpose of forever conserving the ___________________ values [tailor as necessary to describe conservation values of property, including scenic, open space, agricultural, wildlife, relatively natural habitat, recreational, educational, historic, etc.] of the subject property (collectively and hereinafter, the “Conservation Values”).

RECITALS

A. Property. The Landowner is the sole owner in fee simple of the property, which consists of approximately __________ (____) acres of land, located in __________ County, State of New Mexico, which is legally described in Exhibit 1 and shown in the map or survey in Exhibit 2 (the "Property"), both attached to and made a part of this Deed.

B. Water Rights. The Property has appurtenant water rights consisting of ____ acre feet of surface rights from the ________________________ [name of source] with a declared priority date of ____________________, which are more particularly described in Exhibit 3 (the "Water Rights").

C. Mineral Rights. The Landowner owns all mineral rights with respect to the Property. All mineral rights associated with the Property and owned by the Landowner as of the date of this Deed are governed by the terms of this Deed

OR

C. Mineral Rights. Certain mineral rights have been severed from the Property, but the possibility of future mining is so remote as to be negligible, as indicated by the geologist’s report on file with the Land Trust. All other mineral rights associated with the Property and owned by the Landowner as of the date of this Deed are governed by the terms of this Deed.

D. Natural Habitat and Biological Values. The Property consists of significant/relatively natural habitat and ____________________________________ [List vegetative types, flora and fauna, highlighting any species that are unique, rare, threatened or endangered. Reference riparian areas, wetlands, rivers, streams, lakes, ponds, etc. Reference biologist’s report, if any. Reference any adjacent protected areas.]

E. Scenic Values. The Property includes scenic open space consisting of _____________________________________________________________________ [Describe location, views and significant aesthetic features.] The Property is visible from ____________________ [Describe visibility from public roads and public lands and cite scenic designations, if any.]

F. Agricultural Values. The Property is primarily [prime farmland or farmland of statewide significance/ranchland] including ________________________ [Describe property and length of time in agricultural production, if known. Cite USDA soil classifications, if any.]

G. Historical Values. The Property contains ________________________ which is a historically important [land area/certified historic structure/archeological site]. [Cite listing on the National Register, or date of certification by Secretary of the Interior.]

H. Education and Recreation. The Property possesses educational and/or recreational values which benefit the general public and consist of ________________
[trails, lake appropriate for boating, fishing stream, etc.]

I. Governmental Policies. The Property includes ____________________ [open space/farmland/forest land], the preservation of which is pursuant to the following clearly delineated (federal, state or local) governmental conservation policies:

[Cite County and Municipal ordinances and resolutions, if any.]

[Sample state and federal legislation which may be cited if appropriate]

(__) The New Mexico Land Use Easement Act, NMSA 1978, Sections 47-12-1 through 47-12-6, which aids the landowner who wishes voluntarily to donate a conservation easement intended to restrict the use of a specific parcel of land so as to maintain in perpetuity the character of the land.

(__) The New Mexico Land Conservation Incentives Act, NMSA 1978, Sections 75-9-1 through 75-9-6, which provides a tax credit to New Mexico taxpayers for the unconditional donation in perpetuity of land or interest in land that is conveyed for the purpose of open space, natural resource or biodiversity conservation, agricultural preservation or watershed or historic preservation

(__) The New Mexico Cultural Properties Preservation Easement Act, Sections 47-12A-1 through 47-12A-6 (NMSA 1978), which aids the landowner who wishes voluntarily to donate a conservation easement intended to restrict the use of a specific parcel of land so as to maintain in perpetuity the significant archeological or historical character of that land.

(__) The New Mexico Right to Farm Act, Sections 47-9-1 through 47-9-7 (NMSA 1978), which declares the purpose "to conserve, protect, encourage, develop and improve agricultural land … and to reduce the loss to the state of its agricultural resources.”

(__) The New Mexico Watershed District Act, Sections 73-20-1 through 73-20-49 (NMSA 1978), which states the Legislature's desire to further the "conservation … of water, and thereby preserve and protect New Mexico's land and water resources."

(__) The New Mexico Industrial and Agricultural Finance Authority Act, Sections 58-24-1 through 58-24-23 (NMSA 1978), which evidences the Legislature's concern for the maintenance of agriculturally productive resources, and its intention to encourage an increase in the inventory of agricultural lands and a resultant increase in the gainful employment of the citizens of the state.

(__) Property tax relief adopted by the State of New Mexico, which provides for tax relief for agricultural properties through a special method of valuation of land used primarily for agricultural purposes. Section 7-36-20 (NMSA 1978).

(__) The Federal Farmers Home Administration (FmHA) Instruction 1951-S (7 C.F.R. 1951 Subpart S), which states a public policy to "keep the farmer on the farm."

(__) The Federal Farmland Protection Policy Act, 7 U.S.C. Sections 4201 through 4209, which committed the federal government to the goal of conserving farmland in carrying out its public works and other development projects.

J. Public Benefit. Conserving the Property is consistent with and important to the environment, culture, and economy of the surrounding area; and will result in a significant public benefit because:

[May also add some or all of the following, and adjust depending upon the specific attributes of the property subject to the easement:]

(__) The Property possesses significant natural habitat, biological, scenic, open space, and agricultural values of great importance to Landowner, to Land Trust, to __________ County, to the State of New Mexico, and to the people of this nation;

(__) Agriculture has been an integral part of the way of life in __________ County for centuries and should be preserved in order to protect the area's great natural beauty, scenic vistas, and way of life;

(__) Open space has been an integral part of __________ County for centuries and should be preserved in order to protect the area's great natural beauty and scenic vistas;

(__) The Property exists in an area where development is occurring and is expected to occur at an accelerated rate in the future;

(__) The Property includes an acequia, long important to the irrigated farmland, agricultural productivity, traditional way of life and culture of the __________ area and northern New Mexico;

(__) The use of the Property as stated in this Deed is intended to be consistent with public programs for conservation in the area, including programs for irrigation, soil protection, and agricultural uses;

(__) The development of the Property would impair the scenic character of the local rural landscape and would contribute to the degradation of the natural character, agricultural productivity, riparian ecology, and wildlife habitat of the area;

(__) The Property has been evaluated for scenic quality and found to be scenic and easily seen by the public; OR the Property has been evaluated for scenic quality using the [Name of Land Trust]'s Review Process for Scenic Attributes, a rigorous review process for scenic attributes, and found to be scenic, and easily seen by the public;

(__) The Property represents a high quality example of a terrestrial/aquatic ecosystem OR is in a relatively natural state, and includes important habitat for ____________ [provide a list of flora and fauna]

(__) Portions of the Property contain _______________ [ruins, petroglyphs, etc.] of an archeological and historic nature.

(__) The Property provides public recreational opportunities such as _________________.

(__) The Property provides public educational opportunities such as _________________.

K. Baseline Documentation Report. The characteristics of the Property and its current use and the status of improvements and development are described in a Baseline Documentation Report (the “Baseline”) prepared by the Landowner with the cooperation of the Land Trust. The Baseline has been acknowledged by the Landowner and the Land Trust to be complete and accurate as of the date of this Deed. Both the Landowner and the Land Trust have copies of this report, and a copy will be retained in the Land Trust's files. The Baseline will be used by the Land Trust to assure that any future changes in the use of the Property will be consistent with the terms of this Deed.

L. Qualifications. The Land Trust is a nonprofit, tax-exempt organization qualified under Sections 501(c)(3) and 170(b)(1)(A)(vi) of the Internal Revenue Code (the “Code”), a "qualified organization" as defined by Section 170(h)(3) of the Code, a qualified "holder" as defined by Section 47-12-2A of the Land Use Easement Act and an eligible holder pursuant to the Land Conservation Incentives Act.

M. Purpose and Intent. The Landowner intends to make a charitable gift to the Land Trust of the property interest conveyed by this Deed for the purposes (the “Conservation Purposes”) of assuring that, under the Land Trust's perpetual oversight, the Conservation Values will be maintained forever, and uses of the Property that are inconsistent with the Conservation Values will be prevented or corrected. [2] Subject only to the Conservation Purposes set forth above, the intent of the parties is to permit all other uses of the Property which are not inconsistent with the preservation and protection of the Conservation Values as determined by the Land Trust in its sole discretion and which are not expressly prohibited herein. Nothing in this Deed is intended to compel a specific use of the Property, such as agriculture, other than the preservation and protection of the Conservation Values. [3]

AGREEMENT

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the Landowner voluntarily grants and conveys to the Land Trust, and the Land Trust voluntarily accepts, a perpetual "land use easement" over the Property, as defined by Section 47-12-2B of the Land Use Easement Act (the "Easement"), which is also a "qualified real property interest" as defined by Section 170(h)(2)(C) of the Code, the conveyance of which is the gift of a "qualified conservation contribution" as defined by Section 170(h) of the Code.

1. General Rights Retained by Landowner. Landowner reserves to himself/herself and to his/her personal representatives, heirs, successors, and assigns, all rights not expressly prohibited or limited by this easement, including all rights accruing from his/her ownership of the Property, the right to engage in or permit or invite others to engage in all uses of the Property that are not expressly prohibited herein and are not inconsistent with the purpose of this easement, the right to exclude any member of the public from trespassing on the Property, the right to sell or otherwise transfer the Property to anyone they choose, and the right to mortgage the Property, so long as the mortgage is subordinated to this Deed.

2. Uses of the Property. The Landowner shall not perform, nor knowingly allow others to perform, any act on or affecting the Property that is inconsistent with the Conservation Purposes enumerated in this Deed. The Landowner and the Land Trust acknowledge, however, that the uses of the Property and the improvements to the Property described in this Deed and in the Baseline are consistent with the Conservation Purposes. The Landowner understands that nothing in this Deed relieves them of any obligation or restriction on the use of the Property imposed by law.

A. Subdivision. [The legal description of the Property in Exhibit 1 may identify or include one or more legal parcels.] The Landowner and the Land Trust agree that any further division or subdivision of the Property is prohibited. [Optional language: For agricultural or other non-residential purposes, Grantee may approve a division of the Property in its sole discretion.] Creation of a condominium or any de facto division of the Property is prohibited. Lot line adjustments or lot consolidation without the prior written consent of the Land Trust is prohibited. The Property [can/cannot] be used to meet zoning calculations for building or development outside the Property, [eliminate following phrase or tailor to specific situation] except for the addition of _________________________ within the [building envelope] as shown on the map or survey. The Landowner may transfer undivided interests in the Property, provided, however, that no cotenant or owner of an undivided interest shall have the right, either independently or through legal action, to have the Property physically or legally partitioned. The Landowner shall notify the Land Trust immediately of the name and address of any grantee of an undivided interest in the Property. [4]

B. Construction. In general, all existing __________ (buildings, and agricultural structures and improvements, etc.) on the Property may be maintained, repaired, and replaced in their current locations. The construction of any new temporary or permanent buildings, facilities, or structures of any kind is prohibited except as follows: ______________________________________________________________
[Tailor to specific situation. Can include language about building envelopes and homesites, size and height limitations, major vs. minor agricultural structures, fences, lighting, colors, building materials, mobile homes/temporary structures, repair, maintenance, replacement, enlargement, etc.] At least 30 days prior to undertaking any construction permitted herein, and prior to applying for a building permit for such construction, the Landowner shall notify the Land Trust in writing and provide the Land Trust with the opportunity to review the plans for such construction for compliance with the terms of this Deed.

C. Water Rights. Except as specifically provided below, the voluntary separation of Water Rights from the Property is prohibited. The Landowner shall take all prudent measures, including timely payment of assessments, beneficial use of water, and participation in conservation programs, to avoid forfeiture or abandonment of the Water Rights. Should the Landowner be notified for any reason regarding possible forfeiture or abandonment of any of the Water Rights, the Landowner shall immediately notify the Land Trust in writing and arrange for the beneficial use of the Water Rights on the Property. If for any reason the Landowner is unable to beneficially use the Water Rights on the Property, the Landowner shall (i) transfer the Water Rights to the Land Trust or to a third party designated by the Land Trust, to be used for beneficial conservation purposes on the Property or elsewhere in _______ County, or otherwise consistently with the Land Trust’s mission; (ii) with the express written consent of the Land Trust, lease the Water Rights to a third party; or (iii) with the express written consent of the Land Trust, place the Water Rights in a conservation program approved by the Land Trust.

D. Agriculture. All farming, ranching, and agricultural practices shall be conducted in a sustainable manner, and in keeping with practices that are best suited for the conservation of soil and water, the maintenance of soil and water quality, and so as to avoid erosion, overgrazing, soil contamination, and water pollution. The establishment of any feedlot (defined as a permanently constructed confined area or facility within which the land is not grazed or cropped annually, and which is used for the concentrated feeding and/or slaughter of animals) on the Property is prohibited. The Landowner and the Land Trust desire to encourage the continuation of agricultural activities on the Property and to provide sufficient flexibility so that the Landowner can take advantage of appropriate practices and technologies in the future, all in a manner consistent with and in furtherance of the Conservation Purposes.

[Optional language]: Agricultural practices shall use stewardship and management practices generally consistent with the standards of the U.S. Natural Resources Conservation Service or other commonly accepted sound management practices.]

E. Timber. Clear cutting is prohibited. Notwithstanding, limited cutting and removal of timber or wood products is permitted to thin stands appropriately for fire management, to control insects or disease, to prevent personal injury and property damage, to maintain the character and nature of the natural habitat, and to prevent encroachment into agricultural fields and pastures; and to provide firewood for use on the Property and posts for maintaining and constructing fences on the Property. [If Landowner wants to retain the right for future use of the Property as a tree farm, or for limited, sustainable timber harvesting, add language relevant to those activities and a statement that these activities may not compromise the Conservation Values. Working forest easements or easements which contemplate substantial timber harvesting require additional language and should include the preparation of a forest management plan, at the Landowner’s expense, along with notice to or approval by the Land Trust.]

F. Utilities. Above ground utilities (including electric, sewer, water, telephone, cable, gas, etc.), except for those currently located on the Property or specifically anticipated by the Landowner and described in the Baseline, are prohibited. Prior to placing any utilities underground, the Landowner shall notify the Land Trust in writing, specifying the type and location of such utilities and the steps to be taken to protect the Conservation Values. (May need to make exceptions to this in some cases to allow for cell towers, solar panels, etc.)

G. Roads. In general, the maintenance, repair and reconstruction of existing roads are allowed. The construction of new roads is prohibited except for: _________________ [Tailor to specific situation; specify access roads, improved vs. unimproved, surface requirements, temporary roads for agricultural purposes, and prohibitions if desired.] At least 30 days prior to undertaking any the construction of any new roads permitted herein, and prior to applying for any permits necessary for such construction, the Landowner shall notify the Land Trust in writing and provide the Land Trust with the opportunity to review the plans for such construction for compliance with the terms of this Deed.

[Optional language]: Temporary, unimproved roads for agricultural and property management purposes (i.e. roads used to maintain fences and water systems) may be constructed provided that these temporary roads are allowed to return to a natural condition after their use is discontinued.

[Optional language]: Wherever possible, construction and reconstruction of any roads shall be consolidated so as to minimize the number and length of roads and road cuts on the Property, and to minimize the visibility of roads and road cuts from areas surrounding the Property.

H. Off-road vehicle use. Use of snowmobiles, ATVs, motorcycles or other motorized vehicles off of roads or travelways, is prohibited except for agricultural, property maintenance or emergency access purposes.

I. Impervious Surfaces. Paving, covering, or treating the soil with an impervious surface including concrete, asphalt, or any other material, is prohibited except for existing or new paved roads specifically permitted by this Deed or as foundations for construction specifically permitted by this Deed. Any use of the Property which causes any of its surfaces, other than roads permitted pursuant to subparagraph G above, to become relatively impervious or eroded (either through compaction, denuding the land, or otherwise) is prohibited. Helicopter landing pads and airstrips are prohibited.

J. Mining. Soil, sand, gravel, and rock may be extracted from the Property provided that such extraction is solely for use on the Property, that not more than one acre of the Property is disturbed at any one time by such extraction, and that such extraction is done in a manner consistent with the Conservation Purposes and is consistent with Section 170(h) of the Code and the Treasury Regulations adopted pursuant thereto. Any other mining or extraction, or consent by the Landowner to any mining or extraction, of soil, sand, gravel, rock, hydrocarbons, or any mineral substance, using a surface mining method or any other extractive technique that is inconsistent with the Conservation Purposes, is prohibited. Consent to any mining or surface mining on the Property under the New Mexico Surface Mining Act, Sections 69-25A-1 to 69-25A-35 NMSA 1978 or its successor statute, or any other New Mexico surface mining consent law, is prohibited. In addition, no mining shall be conducted within __________ (____) feet of _____________________. [Specify any distances such activity must be from public roadways, property boundaries, wetlands and other sensitive areas.]

K. Refuse. The dumping, accumulation, or storage of any kind of refuse on the Property is prohibited. Should accumulations of refuse be found on the Property, it is the Landowner's responsibility to remove it. This section ("Refuse") shall not, however, prevent composting of biodegradable materials, the storage of agricultural supplies, agricultural equipment, agricultural products and timber products on the Property, so long as such storage is done in a manner consistent with the Conservation Purposes. [May want to consider designating a specific dumpsite on larger, agricultural properties].

[Optional language]: The dumping, accumulation, or storage of any kind of refuse on the Property, with the exception of reasonable accumulations of ranch-related materials (including barbed wire, metal parts, and other ranch related non-combustible materials), is prohibited. Should the accumulation of ranch-related refuse produce a detrimental impact on the Conservation Values of the Property, it shall be the Landowner's responsibility to remove it.

L. Hazardous Materials. Landowner may use agri-chemicals on the Property in accordance with all applicable federal, state, or local laws. Otherwise, the treatment, permanent storage, disposal or release of hazardous materials on, from or under the Property is prohibited. For the purpose of this Deed, hazardous materials shall mean any hazardous or toxic material or waste that is subject to any federal, state, or local law or regulation ("Hazardous Materials").

M. Commercial Activity.(a)Generally. Commercial or industrial activity related to the producing, buying, or selling of goods or services, other than home occupations or recreational activity (both described below), and commercial activity related to agricultural products grown on the Property and agricultural services performed on the Property, are prohibited.

(b) Home Occupations. Nothing in this section ("Commercial Activity") shall prohibit the conduct of "home occupations" permitted by applicable zoning codes, if any, which home occupations are carried out exclusively within structures permitted by the terms of this Deed, and which home occupations are consistent with the Conservation Purposes.

(c) Commercial Recreation. Use of the Property for more than “de minimis” commercial recreational activity is prohibited. The term “de minimis” shall have the meaning set forth in 2031(c)(8)(B) of the Code and the Treasury Regulations adopted pursuant thereto. Golf courses are prohibited on the Property.

N. Recreation. Only those low-impact recreational uses such as wildlife viewing, hiking, cross-county skiing, hunting and fishing not inconsistent with the preservation and protection of the Conservation Values are permitted. Buildings and facilities for public or private recreational use may be built on the Property only in accordance with Section 2(A), and then only in a manner that is consistent with the preservation and protection of the Conservation Values of the Property. Off road use of all-terrain vehicles and snowmobiles is not permitted on the Property except as provided in subparagraph H above. [5]

O. Public Access. This Deed is not intended to provide for public access to the Property. The Landowner retains the right to allow public access to the Property in the future provided that such public access complies with the terms of this Deed and is consistent with preservation of the Conservation Values. The Land Trust shall have no obligation to take any action to prevent trespassing on the Property. [6]

P. Signs. Signs are permitted for purposes of identifying the Property as private property, posting the Property against trespassing or hunting, identifying the Property as protected by the Land Trust, trail markers, “for sale” signs or any posting or notice required by law. All other signs are prohibited. Signs shall not exceed two (2) by two (2) feet in size, be made with reflective surfaces, or be artificially illuminated. [In some cases, may want to consider allowing for a limited number of entrance signs on larger properties.]

3. Perpetual Duration. The Easement shall run with the land in perpetuity. Every provision of this Deed that applies to the Landowner or Land Trust shall also apply to their respective heirs, executors, administrators, assigns, and all other successors in interest as their interests may appear. A party's rights and obligations under this Deed terminate upon transfer of the party's interest in this Deed or the Property except that liability for acts or omissions prior to transfer shall survive transfer.

4. Responsibilities of Landowner. Other than as specified herein, this Deed is not intended to impose any legal or other responsibility on the Land Trust, or in any way to affect any obligation of the Landowner as owner of the Property. Additionally, unless otherwise specified below, nothing in this Deed shall require Landowner to take any action to restore the condition of the Property after any Act of God or other event over which Landowner had no control. Landowner shall continue to be solely responsible and Land Trust shall have no obligation for the upkeep and maintenance of the Property and Landowner understands that nothing in this Deed relieves Landowner of any obligation or restriction on the use of the Property imposed by law. Among other things, this shall apply to:

(a) Taxes. The Landowner is solely responsible for payment of all taxes and assessments levied against the Property. If the Land Trust is ever required to pay any taxes or assessments on its interest in the Property, the Landowner shall reimburse the Land Trust for the same, and until such reimbursement occurs, such payment shall constitute a lien on the Property.

(b) Upkeep and Maintenance. The Landowner is solely responsible for the upkeep and maintenance of the Property.

(c) Liability and Indemnification. The Landowner is solely responsible for liability arising from or related to the Property, including injury (bodily or otherwise) or damage to any person or organization directly or indirectly caused by any action or omission of the Landowner. If the Land Trust is ever required by a court to pay damages resulting from personal injury, property damage, loss, or theft that occurs on the Property, the Landowner shall indemnify and reimburse the Land Trust for these payments, as well as for the Land Trust's costs and reasonable attorneys' fees and other expenses of defending itself, unless the Land Trust or any of its agents have committed a deliberate act that is determined by a court to be the proximate cause of the injury or damage.

(d) Insurance. Landowner warrants that the Land Trust is and will continue to be an additional insured on Landowner’s liability insurance policy covering the Property. Landowner shall provide certificates of such insurance to Land Trust within thirty (30) days after the date of recordation of this Deed and subsequently, upon Land Trust’s written request therefor. Landowner shall advise Land Trust at least thirty (30) days in advance of cancellation of any insurance policy.

5. Landowner Warranties.

(a) Title Warranty. The Landowner warrants that the Landowner has good and sufficient title to the Property, and that there are no liens on, leases to, pending or threatened litigation relating to the Property, or other interests in the Property, including verbal agreements, that have not been disclosed to the Land Trust in writing. The Landowner hereby promises to defend the Property and the Easement against all claims from persons claiming by, through, or under the Landowner.

[OR, if there is a mortgage on the property:]

(a) Title Warranty. The Landowner warrants that the Landowner has good and sufficient title to the Property, that the lien on the Property held by______________ dated _______, has been subordinated to this Deed as shown in Exhibit 4, and that there are no other liens on, leases to, or other interests in the Property that have not been disclosed to the Land Trust in writing. The Landowner hereby promises to defend the Property and the Easement against all claims from persons claiming by, through, or under the Landowner.

(b) Environmental Warranty. The Landowner warrants that the Landowner has no knowledge of a release or threatened release of Hazardous Materials on the Property. The Landowner shall indemnify, defend, and hold harmless the Land Trust against all litigation, claims, demands, penalties, damages, losses, and expenses of any kind, including reasonable attorneys' fees, arising from or connected with any release of Hazardous Materials or violation of federal, state, or local laws. Nothing in this Deed shall be construed as giving rise to any right or ability in Land Trust, nor shall Land Trust have any right or ability, to exercise physical or managerial control over the day-to-day operations of the Property, or otherwise to become an operator with respect to the Property within the meaning of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, or successor statutes.

6. Inspection. (a) Annual. With reasonable advance notice to the Landowner, representatives of the Land Trust may enter the Property at reasonable times for the purpose of inspecting the Property to determine if there is compliance with the terms of this Deed. Inspections will generally occur once a year but may occur whenever the Land Trust deems appropriate.

(b) Emergency. If the Land Trust believes or has reason to believe that there is an ongoing, imminent, or threatened violation of the terms of this Deed, the Land Trust may enter the Property for the purpose of inspecting the Property to determine if there is compliance with the terms of this Deed. The Land Trust will use good faith efforts to contact the Landowner, but the Land Trust may enter the Property without the Landowner's knowledge or presence.

7. Enforcement. The Land Trust has all the rights, remedies, and powers to enforce the terms of this Deed against the Landowner that are provided by law or in equity, including mediation or arbitration, which shall be pursued prior to court action, if in the sole discretion of the Land Trust such is feasible. Except when an ongoing or imminent violation could irreversibly diminish or impair the Conservation Values, the Land Trust shall give the Landowner written notice of the violation and thirty (30) days to correct it before filing any legal action. If a court with jurisdiction determines that a violation may exist or has occurred, the Land Trust may obtain an injunction to stop the violation, temporarily or permanently, and to restore the Property to its condition prior to the violation. In any case where a court finds that a violation has occurred, the Landowner shall reimburse the Land Trust for all its expenses incurred in stopping and correcting the violation, including reasonable attorneys' fees and court costs. If the court finds no violation, the Landowner and Land Trust shall each bear their own expenses and attorneys' fees. The Landowner and the Land Trust agree that this allocation of expenses is appropriate in light of the potential disparate financial incentives of the Landowner and the Land Trust and the Land Trust's public benefit mission.

8. Transfer of Easement. The Easement, and the rights and responsibilities contained in this Deed, may be transferred by the Land Trust to another organization only pursuant to the subsections below:

(a) Involuntary. If the Land Trust ever ceases to exist or no longer qualifies under Section 170(h)(3) of the Code or applicable state law, a court with jurisdiction shall transfer the Easement to another organization having similar purposes, that is qualified under Section 170(h)(3) of the Code, the Land Use Easement Act, the Land Conservation Incentives Act, and other applicable state law, and that agrees to monitor the Easement and enforce the terms of this Deed.

(b) Voluntary. If the Land Trust ever wishes voluntarily to transfer the Easement, the Land Trust will notify the Landowner in writing and give the Landowner sixty (60) days from receipt of notification in which to deliver any preferences the Landowner may have regarding a successor organization. The Land Trust shall give due consideration to Landowner’s choice of successor grantee. The Easement may be transferred only to another organization having similar purposes, that is qualified under Section 170(h)(3) of the Code and applicable state law, and that agrees to monitor the Easement and enforce the terms of this Deed.

9. Amendment. The Landowner and the Land Trust recognize that circumstances could arise which might justify the modification of certain provisions of this Deed. The Landowner and the Land Trust have the right to agree to amendments to this Deed provided that, in the reasonable discretion of the Land Trust, such amendment enhances the Conservation Values. In no event, however, shall any amendment be made that: (i) adversely affects the qualification of the Easement under any applicable laws, including the Land Use Easement Act, the Land Conservation Incentives Act, and Section 170(h) of the Code; (ii) adversely affects the status of Land Trust under any applicable laws, including Section 501(c)(3) of the Code; (iii) affects the perpetual duration of this Deed; or (iv) permits any additional homesites. This Deed shall not be altered, changed, or amended other than by a written instrument executed by the parties and recorded in the Office of the County Clerk of the county in which this Deed was recorded. Nothing in this section ("Amendment") shall require the Landowner or the Land Trust to agree to, or negotiate regarding, any proposed amendment

10. Termination.

(a) Condemnation. If all or a part of the Property is taken for public use (or sold to a public authority under threat of condemnation), and the Easement is terminated in whole or in part, then the Land Trust shall be entitled to a percentage of the condemnation award or sale proceeds (net of any increase in value attributable to improvements made after the date of this Deed) equal to the ratio, as of the date of this Deed, of the appraised value of the Easement to the unrestricted fair market value of the Property.

(b) Changed Conditions. The Landowner and the Land Trust recognize that conditions on or surrounding the Property could change so much in the future that it becomes impossible to protect and preserve the Conservation Values. The Landowner and the Land Trust have the right to jointly request that a court with jurisdiction terminate all or a portion of the Easement created by this Deed and order the sale of the Property. The total loss of all of the Conservation Values is the only grounds under which this Deed may be terminated. Upon such termination of the Easement and sale of the Property, the Land Trust shall be entitled to a percentage of the sale proceeds (net of any increase in value attributable to improvements made after the date of this Deed) equal to the ratio, as of the date of this Deed, of the appraised value of the Easement to the unrestricted fair market value of the Property. This percentage shall remain constant.

[If the Landowner is not seeking a tax deduction for the donation of the Easement, a specific percentage should be substituted for the ratio described in subsections (a) and (b) above.]

(c) Other Termination Provisions. The Easement conveyed by this Deed constitutes a property right, immediately vested in the Land Trust, which the parties stipulate to have a fair market value determined as set forth above. Nothing in this section ("Termination") shall require the Landowner or the Land Trust to agree to, or negotiate regarding, any proposed termination. Any funds received by the Land Trust pursuant to this section ("Termination") shall be used by the Land Trust in a manner consistent with the Conservation Purposes exemplified by this Deed.

(d) Economic Value. The fact that any use of the Property that is expressly prohibited by this Deed, or any other use determined by the Land Trust to be inconsistent with the Conservation Purposes of this Easement, may become greatly more economically valuable than permitted uses hereunder, or that neighboring properties may in the future be put entirely to uses that are not permitted hereunder, has been considered by the Landowner in granting this Easement. It is the intent of both Landowner and Land Trust that any such changes should not be assumed to be circumstances justifying the termination or extinguishment of this Easement pursuant to this section. In addition, the inability to carry on any or all of the permitted uses, or the unprofitability of doing so, shall not impair the validity of this Easement or be considered grounds for its termination or extinguishment pursuant to this section.

11. Approvals. Before doing anything that requires the Land Trust's consent or approval pursuant to this Deed, the Landowner shall seek such approval from the Land Trust in writing. Any consent or approval by the Land Trust permitted or required by this Deed for uses or acts that are conditional or not expressly reserved by the Landowner may be granted only if the Land Trust has determined in its reasonable discretion, that the proposed use or act conforms to the intent of this Deed, meets any applicable conditions stated herein, and is consistent with and not to the detriment of the Conservation Purposes. The Land Trust shall respond in writing within forty-five (45) days of receipt of the Landowner’s written request thereof.

[Optional language]: Compliance Certificates. Within thirty (30) days following receipt of written request from the Landowner, the Land Trust shall execute a compliance certificate and deliver it to the Landowner to certify to the best of the Land Trust's knowledge the Landowner's compliance (or noncompliance) with any obligation of the Landowner contained in this Deed.

12. Notices.

(a) Generally. Any notices permitted or required by this Deed shall be in writing and shall be personally delivered or sent by certified U.S. mail, return receipt requested.

(b) Current Addresses. As of the date of this Deed, the addresses for the Landowner and the Land Trust are as follows:

To the Landowner:

____________________
____________________
____________________

To the Land Trust:

New Mexico Land Conservancy
P.O. Box 6759
Santa Fe, NM 87502-6759

All parties shall be notified of any change of address.

(c) Permanent Addresses. In addition to the foregoing, the address of the Property, as stated in the recitals, shall always be a valid address for notices to the Landowner, and the address of the Land Trust's registered agent, on file with the State of New Mexico, shall always be a valid address for notices to the Land Trust.

13. Transfer of the Property. The Landowner reserves the right to transfer the Property in its entirety at any time. Portions of the Property may not be sold without written permission of the Land Trust. Anytime the Property itself, or any interest in it, is transferred by the Landowner to any third party, the Landowner shall notify the Land Trust in writing at least thirty (30) days prior to the transfer of the Property, and the document of conveyance shall expressly refer to this Deed.

[Optional language: The Landowner reserves the right to transfer the Property in its entirety at any time. If the Property consists of more than one legal parcel and the Landowner wishes to transfer a portion of the Property, the Landowner must request approval for such partial transfer of the Property from the Land Trust at least sixty (60) days prior to the transfer of the Property, which approval the Land Trust may in its sole discretion grant or deny. Anytime the Property itself, any approved portion of it or any interest in it, is transferred by the Landowner to any third party, the Landowner shall notify the Land Trust in writing at least thirty (30) days prior to the transfer of the Property, and the document of conveyance shall expressly refer to this Deed.]

14. Subsequent Mortgages. No provision of this Deed should be construed as impairing the ability of Landowner to use the Property as collateral for subsequent borrowing. Any mortgage or lien arising from such a borrowing is subordinate to this Deed.

15. Waiver. No term of this Deed shall be deemed waived unless such waiver is in writing signed by the party making the waiver. No forbearance, delay, or failure to exercise any right, power, or remedy shall impair such right, power, or remedy, shall be construed as a waiver of such right, power, or remedy, or shall prevent the exercising of such right, power, or remedy in the future.

16. Incorporation. The recitals set forth at the beginning of this Deed, and any exhibits referenced herein and attached hereto, are incorporated herein by this reference.

17. Interpretation. This Deed was negotiated and entered into in the State of New Mexico and shall be governed by the laws of the State of New Mexico. This Deed shall not be interpreted for or against any party on the basis of authorship, but rather shall be interpreted so as to give maximum protection to the Purpose of this Deed. The captions and section headings of this Deed are not intended or represented to be descriptive of all the terms thereunder, and such captions and section headings shall not be deemed to limit, define, or enlarge the terms of this Deed. The use of the words "include" and "including" shall be construed as if the phrases "without limitation" or "but not [be] limited to" were annexed thereafter.

18. No Third Party Beneficiaries. This Deed is entered into by and between the Landowner and the Land Trust, and is intended solely for the Landowner and the Land Trust and their respective successors and assigns, and does not create rights or responsibilities in any third parties.

19. Counterparts. The parties may execute this instrument in two or more counterparts which shall, in the aggregate, be signed by all parties; each counterpart shall be deemed an original instrument as against any party who has signed it; all counterparts, when taken together, shall constitute this instrument.

20. Severability. If any provision of this Deed or the application thereof to any person or circumstance is found to be illegal, invalid, or unenforceable, the remainder of the provisions of this Deed shall not be affected thereby.

21. Integration. This Deed sets forth the entire agreement of the parties with respect to the easement and supersedes all prior discussions, negotiations, understandings, documents, or agreements relating to this Deed or the Easement.

22. Recording. The Land Trust shall record this Deed in a timely fashion in the official records of _____________ County, New Mexico, and Land Trust may re-record it at any time to preserve its rights in this Easement.

23. Acceptance. Pursuant to the Resolution of the Board of Directors of the Land Trust adopted on _______________, 20__, attached hereto as Exhibit 5, the Land Trust has accepted the Easement conveyed by this Deed and the rights and responsibilities described in this Deed.

To Have and To Hold, this Deed of Conservation Easement unto the Land Trust, its successors and assigns, forever.

In Witness Whereof, the Landowner and the Land Trust, intending to legally bind themselves, have set their hands on the date first written above.

"Landowner"

______________________________
[Print Name]

“Land Trust"

New Mexico Land Conservancy, a New Mexico nonprofit corporation

______________________________
[Print Name]
Chair, Board of Directors

ACKNOWLEDGMENTS

County of ____________________ ) ) ss
State of ____________________ )

The foregoing instrument was acknowledged before me this ____ day of ____________, 20__, by ___________________.

______________________________
Notary Public (SEAL)

My commission expires: _______________________

County of ____________________ ) ) ss
State of ____________________ )

The foregoing instrument was acknowledged before me this _____ day of ____________, 20___, by _______________, the Chair of the Board of Directors of the New Mexico Land Conservancy.

______________________________
Notary Public (SEAL)

My commission expires: ________________________

Exhibit 1 to Deed of Conservation Easement

LEGAL DESCRIPTION

[To be added.]

Exhibit 2 to Deed of Conservation Easement

MAP OR SURVEY OF PROPERTY

[To be added.]

Exhibit 3 to Deed of Conservation Easement

WATER RIGHTS

[To be added.]

Exhibit 4 to Deed of Conservation Easement

MORTGAGE SUBORDINATION AGREEMENT

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned ____________________, a ____________________, as Mortgagee of that certain Real Estate Mortgage recorded ____________________, 19___ in Book __________ at page __________ in the records of the __________ County Clerk, __________ County, New Mexico, hereby consent to the execution of that certain Deed of Conservation Easement by _____________________, as Landowners, to the New Mexico Land Conservancy, a New Mexico nonprofit organization, as Land Trust, subordinate the lien of the Real Estate Mortgage to the Deed of Conservation Easement, and agree that any foreclosure of the Real Estate Mortgage shall not adversely affect the existence or continuing validity of the Deed of Conservation Easement, which Deed of Conservation Easement shall run with the land and remain in full force and effect as if such Deed of Conservation Easement were executed, delivered, and recorded prior to the execution, delivery, and recording of the Real Estate Mortgage. This subordination of ______________________ mortgage shall pertain only to the property described in the attached exhibit.

IN WITNESS WHEREOF, the undersigned has executed this Subordination as of ____________________, 20__.

[Name of Mortgagee]

By: ______________________________
Name: ______________________________
Title: ______________________________

[Add acknowledgment block for representative of mortgagee]

Exhibit 5 to Deed of Conservation Easement

RESOLUTION BY THE BOARD OF DIRECTORS OF
THE NEW MEXICO LAND CONSERVANCY
REGARDING THE ____________________ CONSERVATION EASEMENT

The following Resolution was passed by the Board of Directors of the New Mexico Land Conservancy on _____________, 20__, as recorded in the Minutes of the Board Meeting:

"RESOLVED by the Board of Directors of the New Mexico Land Conservancy that a Deed of Conservation Easement from _____________________ to the New Mexico Land Conservancy, conserving certain conservation [natural habitat, agricultural, scenic open space, educational, recreational or historic]values on __________ (____) acres of land, be accepted by the New Mexico Land Conservancy, and that the New Mexico Land Conservancy accepts all of the rights and responsibilities described in said Deed, and that the Chair of the Board of Directors of the New Mexico Land Conservancy , _________________, is hereby authorized by the Board of Directors to act on its behalf to finalize and execute said Deed on behalf of the New Mexico Land Conservancy ."

By: ___________________________ Date: ______________
(Print Name)
Secretary, Board of Directors

NOTES TO MODEL DEED

[1] Individuals: if property is owned by a single person, the landowner should be described as “John Doe a single person.” If a married couple dealing in community property, the description would read “John and Jane Doe, husband and wife.” If a married person dealing in their separate property (acquired before the marriage or after the marriage by gift or bequest), then “John Doe, dealing in his sole and separate property, joined pro forma by his wife Jane Doe.” There should be a signature line for Jane Doe on page 16, and a separate notary block for her on page 17. If property is owned jointly, also state whether they hold the property as joint tenants with right of survivorship (which means that the property passes automatically to the survivor upon the death of the other), or as tenants in common (in which the decedent’s partial interest does not automatically pass to the survivor). All joint tenants and tenants in common (including holders of undivided partial interests) must sign the deed.

Corporations, etc.: if property is owned by a corporation, partnership, limited liability company, professional association, or other form of business entity, the deed should be signed by someone authorized by the organization’s bylaws and by resolution (Exhibit 5). The notary block should read “The foregoing instrument was acknowledged before me this ____ day of __________, 20___, by _______________, the _______________ of the ________________ [name of organization]. The signer is generally the president, executive director, general partner of a partnership, or managing member of an LLC.

[2] If the easement is purchased rather than donated, substitute the following language: “The Landowner intends that, under the Land Trust’s monitoring and enforcement, the Conservation Values of the Property will be maintained forever , and that uses of the land that are inconsistent with these Conservation Values will be prevented or corrected (the “Conservation Purposes”). The parties agree that the current uses of and improvements to the Property described in this Deed are consistent with the Conservation Purposes of this Deed.” If the easement is conveyed through a bargain sale, then retain the original language of this recital (because there is a charitable gift involved, although not as large a gift as with an outright easement donation).

[3] The land trust may wish to seek the landowner's input in this Recital to aid in judicial interpretation in the future.

[4] As noted above, if property is held in joint tenancy, upon the death of one joint tenant, the property automatically passes, by operation of law, to the survivor. In the case of tenants in common, any one of the co-tenants can seek physical partitioning of the property by a court.

[5] Internal Revenue Code Section 2031(c) provides for the exclusion of an additional percentage of the value of the property from an estate, in addition to the reduction in value already attributable to the easement. In order to qualify, the easement must prohibit all but minimal (“de minimis”) commercial recreational use of the land. A golf course is clearly a commercial recreational activity. A hunting area to which the landowner charges an admission fee may be considered more than “minimal” commercial recreational use, depending on the frequency and intensity of this activity (and perhaps the income derived from the activity, compared to income derived from agricultural or ranching operations). In order to determine whether commercial recreational use is more than “minimal,” the land trust will need to rely on instinct. As a U.S. Supreme Court justice described pornography: “I can’t define it, but I know it when I see it.”

[6] Easements that are exclusively for historic preservation require some public access – at a minimum, three or four days per year for easements that are designed to protect the interior of a property, or a property that is not readily visible from a public roadway or area. If a preservation easement concerns a fragile archaeological site, or an area that poses a threat to public safety (i.e., an open mineshaft or the La Brea tar pits), then public access is not required.

Here is sample language regarding historic preservation easement access:

Public Access. The parties acknowledge that as of the effective date of this Easement, the Building is used for residential purposes, and is not open to the public. At times deemed reasonable by Landowner and approved by Land Trust, but no fewer than three times per year, persons affiliated with educational organizations, professional architectural associations, and historical societies may be admitted to study the Building. Land Trust may take photographs, drawings, or other representations documenting the significant historical, cultural and architectural character and features of the Building and distribute them to magazines, newsletters, or other publicly available publications, or use them to fulfill its charitable and educational purposes.

If you have any questions after reviewing this information please contact us.