Senate Bill No. 447

(By Senators Yoder, Ross, Dittmar and Grubb)

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[Introduced February 20, 1995; referred to the Committee
on the Judiciary.]
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A BILL to amend chapter twenty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article twelve, relating to providing for the creation, conveyance, acceptance, duration and validity of conservation and preservation easements; and providing for judicial actions.

Be it enacted by the Legislature of West Virginia:
That chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article twelve, to read as follows:
ARTICLE 12. CONSERVATION AND PRESERVATION EASEMENTS.
§20-12-1. Short title.
This article shall be known and may be cited as the "Conservation and Preservation Easements Act".
§20-12-2. Purpose of article.
The general assembly recognizes the importance and significant public benefit of conservation and preservation easements in its ongoing efforts to protect the natural, historic, agricultural, open-space and scenic resources of this state.
§20-12-3. Definitions.
The following words and phrases when used in this article have the meanings given to them in this section unless the context clearly indicates otherwise:
(a) "Conservation easement" means a nonpossessory interest of a holder in real property, whether appurtenant or in gross, imposing limitations or affirmative obligations, the purposes of which include, but are not limited to, retaining or protecting for the public benefit the natural, scenic or open-space values of real property; assuring its availability for agricultural, forest, recreational or open-space use; protecting natural resources and wildlife; maintaining or enhancing land, air or water quality, or preserving the historical, architectural, archaelogical or cultural aspects of real property.
(b) "Holder" includes the following:
(1) A governmental body empowered to hold an interest in real property under the laws of this state or the United States.
(2) A charitable corporation, charitable association or charitable trust registered with the secretary of state and exempt from taxation pursuant to section 501(c)(3) of the Internal Revenue Code of 1986 (Public law 99-514, 26 U.S.C. section 501(c)(3), or other federal or state statutes or rules, the purposes or powers of which include retaining or protecting the natural, scenic, agricultural or open-space values of real property; assuring the availability of real property for agricultural, forest, recreational or open-space use; protecting natural resources and wildlife; maintaining or enhancing land, air or water quality, or preserving the historical, architectural, archaelogical or cultural aspects of real property.
(c) "Preservation easement" means a nonpossessory interest in an historical building.
(d) "Third-party right of enforcement" means a right provided in a conservation or preservation easement, in order to enforce any of its terms, granted to a governmental body, charitable corporation, charitable association or charitable trust, which, although eligible to be a holder, is not a holder.
§20-12-4. Creation, transfer and duration.
(a) Action affecting an easement. -- Except as otherwise provided in this article, a conservation or preservation easement may be created, conveyed, recorded, assigned, released, modified, terminated or otherwise altered or affected in the same manner as other easements.
(b) Acceptance. -- No right or duty of a holder, successive holder named in the easement deed or person having a third-party right of enforcement arises under a conservation or preservation easement before the easement's acceptance by the holder, successive holder or third party with right of enforcement and a recordation of the acceptance.
(c) Duration. -- Except as provided in subsection (b), section five of this article, a conservation or preservation easement created after the effective date of this article may be perpetual in duration, but in no event shall be for a duration of less than twenty-five years.
(d) Existing interests. -- An interest in real property in existence at the time a conservation or preservation easement, including prior unrecorded easements intended to provide services of a public utility nature, is created is not impaired by it unless the owner of the interest is a party to the easement or expressly consents to it.
§20-12-5. Judicial and related actions.
(a) General rule. -- An action affecting a conservation or preservation easement may be brought by any of the following:
(1) An owner of an interest in the real property burdened by the easement;
(2) A holder of the easement;
(3) A person having a third-party right of enforcement;
(4) A person authorized by another law.
(b) Power of court. -- This article does not affect the power of a court to modify or terminate a conservation or preservation easement in accordance with the principles of law and equity as long as the public policy of this article as stated under section two is carried out to the fullest extent and the easement construed broadly to effect that policy. Any general rule of construction to the contrary notwithstanding, conservation and preservation easements shall be liberally construed in favor of the grants contained therein to effect the purposes of those easements and the policy and purpose of this article.
(c) Impairment of rights. -- Nothing in this article limits in any way the lawful exercise of eminent domain by any person or entity having legal authority to do so or restricts any such right to compensation a holder of a conservation or preservation easement may have under applicable law, or in lieu thereof to purchase rights for its public purposes over real property subject to a conservation easement without resort to condemnation.
(d) Just compensation. -- A court order issued under subsection (c) of this section shall provide for the holder of the easement to be compensated for the fair market value of the easement as affected by the court's adjudication. Nothing in this article prevents a purchase agreement in lieu of condemnation as a means of providing fair market value to the holder of the easement. Any damages received by the holder shall be applied solely to the public benefit in accordance with its charter or articles of incorporation. The court in adjudicating damages to a conservation or preservation easement shall be guided by principles generally applicable to condemnation proceedings.
§20-12-6. Validity.
(a) Conditions. -- A conservation or preservation easement is valid even though:
(1) It is not appurtenant to an interest in real property;
(2) It can be or has been assigned to another holder;
(3) It is not of a character that has been recognized traditionally at common law;
(4) It imposes a negative burden;
(5) It imposes affirmative obligations upon the owner of an interest in the burdened property or upon the holder;
(6) The benefit does not touch or concern real property; or (7) There is no privity of estate or of contract.
(b) Recording easement. -- A conservation or preservation easement shall be recorded within sixty days of its effective date to be considered an easement subject to and enforceable under the provisions of this article. Upon proper recording the provisions of this article shall apply retroactively to the effective date of the easement.
§20-12-7. Applicability.
(a) Interests created after the effective date. -- This article shall apply to any interest created after its effective date which complies with this article, whether designated as a conservation or preservation easement or as a covenant, equitable servitude, restriction, easement or otherwise.
(b) Interests created before the effective date. -- This article shall apply to any interest created before its effective date if the interest would have been enforceable had it been created after its effective date, unless retroactive application contravenes the Constitution or laws of the United States or of this state.
(c) Enforceable interests not invalidated. -- This article does not invalidate any interest, whether designated as a conservation or preservation easement or as a covenant, equitable servitude, restriction, easement or otherwise, that is enforceable under another law of this state.
§20-12-8. Uniformity of application and construction.
This article shall be applied and construed to effectuate its general purpose to make uniform the laws with respect to the subject of this article among states enacting similar laws. Except as expressly otherwise provided herein, nothing in this article is intended to be construed to alter applicable established common law, and accordingly in a manner consistent with common law, the prior granting of a conservation or preservation easement shall not in any way restrict the right of the fee owner to further grant to any person or entity for any purpose such other interests in the real property which do not materially impair the prior conservation or preservation easement, or other easements or rights of record: Provided, That the holder of a conservation or preservation easement shall be given forty-five days written notice prior to execution of the subsequent easement.




NOTE: The purpose of this bill is to provide for the creation, conveyance, acceptance, duration and validity of conservation and preservation easements; and provide for judicial actions.

This article is new; therefore, strike-throughs and underscoring have been omitted.