Keeping the Perpetual in Florida's Conservation Easements

Abstract

Hundreds of millions of dollars are being invested in the protection of the Florida Wildlife Corridor and other environmentally sensitive lands. One of the primary tools being used to accomplish this protection is the perpetual conservation easement, which is touted to landowners and the public as providing a permanent guarantee that the subject lands will never be developed. There is a very real danger, however, that perpetual conservation easements in Florida may not, in fact, be perpetual, and the protections put in place today will vanish over time—along with the public funds invested therein—as government and nonprofit holders “release” the easements in the face of economic, political, and development pressures. Florida landowners may also find themselves unable to benefit from the subsidies offered through federal tax incentive and purchase programs due to an inability to qualify for those programs, which mandate that strict limits be placed on the release or extinguishment of conservation easements. This Article raises the alarm regarding the potential lack of durability of conservation easements in Florida, and explains the significant disconnect between what landowners and the public are being told about the permanence of conservation easements and the realities of existing law. This article also seeks to address these problems by recommending two steps that should be taken now to ensure that perpetual conservation easements in Florida will, in fact, be perpetual: (i) revise Florida law to place clear limits on the extinguishment or amendment of perpetual conservation easements, as has been done in several other states, and (ii) draft conservation easements to make clear that the grantor, the grantee, and their successors in interest are bound by the easement terms. With hundreds of landowners reportedly waiting to grant perpetual conservation easements to protect the Florida Wildlife Corridor, the time to act is now.