Conservation Covenants in England and Wales

This summer, many of us conservation easement research types received emails from the Law Commission for England and Wales. The Law Commission is similar to the Uniform Law Commission here in the US in mission (researches potential legal reform and presents suggested statutory texts), but the British version is a body established by Parliament and the US version is a non-profit organization.

When considering changes to the law, the COmmission staff assemble consultation papers. The papers present research on the legal topic at issue, suggest statutory parameters and language, and solicit comments from "consultees." Anyone who visits the website and submits the form can comment, but the Commission also contacts specific people and organizations to solicit their views. There is even a form with specific questions on the issue to complete. I thought this was a very informative and interesting approach.

As you should have already gleaned from the title of this approach, the Law Commission is examining the case for introducing "conservation covenants" into the law of England and Wales. Now, while I read the consultation paper carefully and made lots of notes (several exclamation marks in the margins of this one), I just couldn't get my act together to submit comments  by the June 21st deadline. While this is just a proposal and not yet even a proposed bill, there are lots of interesting things going on in this british version of conservation easements. I thought I would highlight a few of them for you here:

(1) Specific choice not to use the word easement.

(2) No tax breaks associated with donating conservation covenants.

(3) All transactions must be voluntary, so presumably that means no exactions or eminent domain-like creations. However, the Commission contemplates widespread use for offsetting schemes.

(4) Conservation covenants are much easier to terminate or modify. With holders having power to unilaterally discharge obligations. Also suggests a judicial proceeding with specific factors that the tribunal should consider in modifying or terminating the covenants

(5) leaseholders with long leases can enter into conservation covenants for the term of their lease

Plus oh so much more.The differences between the proposed law and the US laws is significant.

I'd be really interested to hear both what consultees said in response to this paper and what you would change here in the US if we were to rewrite our conservation easement laws. (I have my own little wishlist of course).

- Jessica Owley