The Virginia Outdoors Foundation (VOF) has many tools in its toolbox to protect open space, and one of the most common is VOF’s ability to accept open-space easements as defined in Virginia Code § 10.1-1700 from landowners. An open-space easement (also referred to as a “conservation easement” by nongovernmental land trusts and entities outside of Virginia) is a nonpossessory interest in real estate by which certain development rights, such as the ability to subdivide or construct buildings, are limited or prohibited for the purpose of protecting conservation values. Most open-space easements granted by landowners in Virginia are donated to public bodies such as VOF. Landowners give these gifts because they want to see the open-space values of the land protected for future generations, whether those values are related to water quality, farming, recreation, forestry, habitat, or cultural resources.
In an easement held by VOF, the landowner and VOF must agree to all terms of the easement, and VOF must ensure that the easement is being provided for the benefit of the public. VOF is also responsible for enforcing the terms of the easement for future owners of the property. The terms tend to be restrictive in nature, such as terms prohibiting subdivision of the land or limiting timbering in sensitive habitat areas. However, terms may also be set out as requirements, such as a term requiring public access to a property that is being protected as a public park or trail.
With more than 50 years of experience managing open-space easements, and more than 4,000 easements in our portfolio, VOF has developed a great deal of expertise. As a public body that works with other federal, state, and local agencies, we also are mindful of the many conservation values the public wishes to protect and the best practices for protecting them. As such, we offer a Model Deed of Easement (Model Deed) as guidance to landowners in meeting conservation objectives.
We have created the Model Deed as a guidance tool to show landowners and their attorneys the types of values we seek to protect, and model language that we feel achieves those protections. These terms are meant to be a starting point in the drafting process. Values and terms may need to be tailored for specific properties. Some of the guidance we offer is influenced by federal and state tax policy, as there may be tax benefits associated with charitable gifts of easements. Please consult with your legal and tax advisors to ensure compliance with these policies. VOF can point you to specific policies, but, as the grantee we cannot offer legal or tax advice.
Once a landowner and his/her attorney has drafted the easement, they will work with VOF staff in a negotiation process to ensure that the restrictions and values being protected conform with VOF policies and priorities. VOF staff will present the draft easement to our Board of Trustees for review and approval.
The entire process of conveying an open-space easement to VOF is voluntary. Landowners may change their minds or request changes in the deed of easement at any point prior to recordation. Once the easement is recorded, it is final and can only be amended to strengthen conservation protections.
While VOF’s job is to protect conservation values on behalf of the public, we are sensitive to the needs of landowners and the flexibility necessary to manage these easements in perpetuity. Landowners should always feel comfortable talking to our staff about concerns they have with easement terms prior to recordation. We pride ourselves on transparency throughout the process.
Just as the process of drafting and conveying an easement to VOF is landowner-driven, the process of enforcing an easement is public-driven. If there are ever disagreements with landowners over particular restrictions, VOF must advocate on behalf of what’s in the best interest of the public and the conservation values we are seeking to protect.
VOF periodically updates its Model Deed to reflect best practices in land conservation, as well as new or changing priorities benefitting the public. These updates are guided by our day-to-day work with landowners, public policy, court cases, and feedback from partner agencies and organizations. Suggestions for improvements are always welcome. Please email feedback or suggestions to bstewart@vof.org.
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