Agricultural and Conservation Easements are a permanent way you can protect the natural resources, scenic value, and agricultural use of your property. Agricultural easements typically protect land from development and other non-agricultural uses while ensuring the land is farmed in a sustainable manner. Conservation easements may or may not allow agricultural uses on the land, depending on your preferences and the characteristics of the property. Such easements are typically used to protect important natural features and wildlife habitat.
Professor Neil Hamilton interviews Mark Ackelson, President of the Iowa Natural Heritage Foundation, on the legacy of Iowa’s land and the use of conservation easements as a tool to protect that legacy.
If you wish to continue leasing your farmland for agricultural production, but are interested in entering an agricultural or conservation easement, you have some additional issues to deal with in developing your lease agreement. This is especially true if you are willing to grant a long lease-term to your tenant farmer.
It is possible to grant an easement while a farm lease still exists. This will either take negotiating new lease terms with the tenant before you enter the easement or reserving your right to grant an easement in the lease agreement. In order to accomplish the latter you might consider a provision such as this:
The Landlord retains the right to grant conservation and agricultural easements provided the terms of such easements do not unduly restrict the normal agricultural activities as established in this Lease. The Landlord shall provide the Tenant with at least _____ days notice prior to granting any such easement. The notice shall be in writing and contain the terms and conditions of the easement. The Tenant shall have _____ days to request a meeting, the sole purpose of which is to express concerns and to clarify easement terms. The meeting shall take place within _____ days of the Tenant’s request and can be held in person or via telephone at the Landlord’s discretion. The Tenant agrees to subordinate this lease to the interests of the easement holder.
The Landlord agrees to indemnify, defend, and hold harmless the Tenant against any liability and pay for any and all damages, losses, or expenses incurred by the Tenant in connection with the use by third parties of any easements over the lease premises.
This provision allows you to still enter conservation and agricultural easements, but lets the tenant continue farming the land. It is important that the tenant understand the terms and conditions of the easement and is willing to comply with those terms and conditions. The clause allowing the tenant to meet with you allows the tenant to voice any concerns about the terms of the easement.
If the tenant is not willing to agree to this provision you could offer to give the tenant the ability to reject the proposed easement. Such a provision might look something like this:
During the term of this lease, the Landlord shall not voluntarily grant any easements over the lease premises, unless, at least _____ days prior to granting any such easement, the Landlord provides the Tenant with notice of the Landlord’s intention to grant such easement, and the Tenant provides written consent to the granting of such easement.