Senate Bill No. 447
(By Senators Yoder, Ross, Dittmar and Grubb)
[Introduced February 20, 1995; referred to the Committee
on the Judiciary.]
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
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
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
(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
(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
(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
(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
(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
(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.
(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
(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
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
This article is new; therefore, strike-throughs and
underscoring have been omitted.