An Act To Amend the Conservation Easement Laws

August 13, 2007

The State of Maine recently enacted "An Act To Amend the Conservation Easement Laws", which becomes effective September 20, 2007. The new law changes the existing laws relating to conservation easements and imposes new obligations on holders of conservation easements. The Act affects all conservation easements executed after the September 20, 2007 effective date and certain portions of the Act also affect existing conservation easements, so both current and future easement holders and landowners should be aware of the entire Act and contact legal counsel with any questions. Among the
more notable changes, the Act provides as follows: 

1. Statement of Conservation Values. All conservation easements executed on or after September 20, 2007 "must include a statement of the conservation purposes of the easement, the conservation attributes associated with the real property and the benefit to the general public intended to be served by the restriction on uses of the real property subject to the conservation easement."
 
2. Amendment and Termination. New conservation easements must state certain statutory requirements regarding the easement holder's power to amend the easement. No easement (new or existing) may be amended or terminated except with court approval and involvement of the Attorney General if the change or termination would "materially detract from the conservation values intended for protection". If the amendment or termination of an easement results in an increase in the value of the landowner's property, that increase must be paid over to the easement holder or a nonprofit or governmental
entity and used for the protection of conservation lands consistent with the easement's statement of conservation values.
 
3. Monitoring. The Act requires all easement holders to monitor the condition of the real property at least every 3 years, to prepare and retain a written report in their permanent records, and to make the report available to the landowner.
 
4. Action or Intervention. The Act enables the Attorney General to enforce any conservation easement under certain circumstances, including the ability to commence a lawsuit to bring about compliance within 90 days after written notice by the Attorney General.
 
5. Power of Court. The Act modifies the role of the court by limiting the basis upon which a court may deny a request for equitable relief to situations where a change in circumstances has rendered the easement "no longer in the public interest or no longer serving the publicly beneficial conservation purposes identified in the conservation easement."
 
6. Confidentiality of Records. The Attorney General may share documents and records it obtains with other public agencies, but confidential documents and records must be held by the Attorney General and other agencies as confidential.
 
7. Validity. A conservation easement will continue to be valid even if the real property that is the subject of the conservation easement is acquired for tax delinquency or is acquired by the holder of the easement.
 
8. Conservation Easement Registry. The Act imposes a registration requirement on any
conservation easement holder. An easement holder is required to file a registration form annually with the State Planning Office, along with a $30 registration fee. Although the Act is not clear on this point, initial indications suggest that each holder will be allowed to submit a single report listing all of the conservation easements in its inventory.
 
The full text of the Act is available here. 

If you have any questions regarding the changes to Maine's conservation easement laws, please contact John R. Canders or Matthew C. Worthen at 207-947- 0111 for further information. 
  
 
This alert is provided as general information, and is not a substitute for legal or other professional advice.