Senate Bill No. 447
(By Senators Yoder, Ross, Dittmar and Grubb)
[Originating in the Committee on the Judiciary;
reported February 28, 1995.]
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
generally to the creation, conveyance, acceptance, duration
and validity of conservation and preservation easements;
creating the "Conservation and Preservation Easements Act";
defining the purpose of such act; defining the terms used in
the act; outlining the procedure for the creation and
transfer of conservation and preservation easements;
describing who may bring judicial actions; actions the court
may take with regard to certain easements; grounds for the
validity of the easements; the applicability of the article;
and the construction of the article.
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 West Virginia Legislature 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,
archaeological or cultural aspects of real property.
(b) "Holder" means:
(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, archaeological 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) 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) 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
(c) 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
(d) An interest in real property in existence at the time a conservation or preservation easement is created, including an
unrecorded lease for the production of minerals or removal of
timber, shall not be impaired unless the owner of such interest
is a party to the easement or expressly consents to comply with
the restriction of such easement.
§20-12-5. Judicial and related actions.
(a) 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; or
(4) A person, agency or entity otherwise authorized by state
or federal law.
(b) 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 consistent with
the public policy of this article as stated under section two of
this article, when the easement is broadly construed to effect
that policy. Notwithstanding provision of law to the contrary,
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) A holder, governmental entity or other person may not
exercise the right of eminent domain or the power of condemnation
to acquire a conservation easement without condemning or
exercising the right of eminent domain as to the entire fee
interest of the property: Provided, That any public utility
regulated pursuant to the provisions of chapter twenty-four of
this code or any person or entity under the jurisdiction of the
federal energy regulatory commission may condemn a right-of-way
across or upon a conservation easement or preservation easement
for the purposes of pipelines, lines, conduits and other
facilities for the transmission of natural gas, electricity,
water, wastewater and other services provided by public utilities
pursuant to said chapter twenty-four or any person or entity
under the jurisdiction of the federal energy regulatory
commission. Nothing in this article may be construed to limit
the lawful exercise of the right of eminent domain or the power
of condemnation by any person or entity having such power, or the
right of any real property owner to compensation by reason of the
lawful exercise of such right of eminent domain or power of
condemnation, for any estate or interest in real property except
a conservation or preservation easement authorized by this article.
(a) A conservation or preservation easement is valid even
(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 as 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) To be enforceable under the provisions of this article,
a conservation or preservation easement shall be recorded within
sixty days of the effective date of the easement. Upon proper
recording, the provisions of this article apply retroactively to
the effective date of the easement.
(a) This article applies to any interest created after the
effective date of this article, whether designated as a
conservation or preservation easement or as a covenant, equitable
servitude, restriction, easement or otherwise.
(b) This article applies to any interest created before the
effective date when 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. No conservation easement or
preservation easement created prior to the effective date of this
article may be invalidated by reason of the enactment of this
article when the conservation easement or preservation easement
was valid under the law in effect at the time of its creation.
(c) 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, nothing contained in this
article is intended to be construed to alter applicable
established common law. In a manner consistent with common law,
the granting of a conservation or preservation easement shall not
subsequently restrict the right of the fee owner to further grant
any other interest in real property to any person or entity when the grant does not materially impair the prior conservation or
preservation easement. When a fee holder grants an interest
beyond the conservation or preservation easement, he shall notify
the holder of any conversation or preservation easement at least
forty-five days prior to the execution of any subsequent easement
or any other conveyance of an interest in land encompassed by the
conservation or preservation easement.