Category Archives: Easements

Basics of Environmental Easements

Why have an Environmental Easement?

Not only does the land owner realize money from the grant of the easement, but the terms of the easement contain specific provisions allowing him to continue to use it for certain purposes and enjoy the fact the land is protected for future generations..

The ownership of the land remains with the land owner.

What is the value of an easement?

An independent professional valuer should value the land. The simplest way to value easements is to value the land for its highest and best use and then to value it as if the easement was in place.

The difference between the two figures is the value of the easement. This method is referred to as the before and after methodology; the value before the easement and then after.

How are Easements implemented after registration?

Environmental easements ideally exists in perpetuity., but they can also be for negotiated periods. Over time, the land changes hands, and the new owner becomes less connected to the land than the owners who placed the easement.

Ensuring that the easement continues to achieve its original purpose requires continuous monitoring and evaluation against the original baseline report of the land’s condition at the time of the easement’s creation.

Such monitoring is the responsibility of the holder of the easement, and if the land owner is found to be acting in ways inconsistent with the terms of the easement, the holder will need to remedy this.

For more information kindly do contact the persons below.

Director, Land Conservation

African Wildlife Foundation

[email protected]

www.awf.org

Director

Kenya Land Conservation Trust

[email protected]

www.klct.or.ke

Basics of Environmental Easements

Are all environmental easements the same?

No. Easements are flexible tools for landowners who wish to conserve their land. The easement contract is a negotiated agreement between the landowner and the proposed easement holder depending on the conservation values that they want to protect. Easements confer upon their holder the legal responsibility of ensuring that the restrictions are upheld, while the landowner maintains the rights to use, sell, and bequeath the property subject to the terms of the easement. Each easement is individually tailored to meet a landowner’s needs while at the same time meeting the conservation objective.

If I convey an easement, does that mean the land is open to the public?

No. Unless you specify that you want this, environmental easements generate public benefits by preserving open space, protecting ecosystem services such as clean water, air, wetlands, carbon sinks and biodiversity, and protecting habitats. These public benefits of conservation easements are everlasting.

Is an easement legally binding?

Yes. An environmental easement is legally binding, whether the property is sold or passed on to heirs, the easement is registered against the title. Should any of the parties contravene the agreement, there are means of addressing the problem through mediation or other channels.

Can you provide an example?

Consider land between two protected areas, perhaps a privately owned property between two National Parks, onto which animals from both Parks are continually straying, and which itself still remains ideal wildlife habitat. The landowner does not want to sell the land, but wants to protect the land in perpetuity. The landowner works with a conservation organization that is willing to fund the purchase of an easement for a value that is determined by an independent valuer. Not only has the landowners realized money from the grant of the easement, but the terms of the easement contain specific provisions allowing him to continue to reside on the land, use it for certain purposes and enjoy the fact that the land is protected for future generations. The ownership of the land remains with the landowner.

Basics of Environmental Easements

Are AWF and KLCT interested in non-voluntary easements?

No. African Wildlife Foundation (AWF) and Kenya Land Conservation Trust (KLCT) will only work with landowners who are willing and interested in consensually negotiated environmental easements.

Does the landowner who conveys an easement still own the land?

Yes. The title on which the easement is registered remains with the landowner.

What is included in the easement agreement?

Environmental easements vary in content, but there are certain essential components:

  1. Description of the purpose of the easement and the conservation values of the land; these are usually set out in a schedule and comprise the present state of the land which acts as a baseline for future monitoring of the easement.
  2. Conveyance of certain rights to the grantee to enable it to enforce the provisions of conservation easement.
  3. Prohibition of specific uses of the property that is inconsistent with the purposes of an environmental easement (e g fences, dams, roads, construction, and mining).
  4. Reservation of certain rights to the landowner (e g right to continue living on land, or ranch to an agreed extent).

Basics of environmental easements

Continuation…….

Are Easements Permitted under Kenyan Law?

Yes! Environmental easements are permitted under the Environmental Management and Coordination Act (EMCA) for conservation purposes.

Environmental easements can be consensually negotiated between two parties. The agreement must be approved by a court and then registered against the land title. The law also provides for easement to be imposed by one party on another through the court process. After approval the easement will be registered against the title

According to EMCA, “The object of an environmental easement is to further the principals of environmental management set out in this Act by facilitating the conservation and enhancement of the environment, in this Act referred to as the benefited environment, through the imposition of one or more obligations in respect of the use of land, in this Act referred to as the burdened land, being the land in the vicinity of the benefited environment”.

Under EMCA who can own or hold an easement?

Under EMCA, anyone can hold an easement. However, given the goal of land protection and the need for the holder of the easement to monitor the easement, KLCT and AWF strongly recommend all easements to be held by conservation organizations with a focus on land conservation and the ability to monitor and enforce easements long into the future.

For more information please contact:

[email protected]

or

[email protected]

or visit our website

http://www.klct.or.ke

Basics of Environmental Easements

Basics of Environmental Easement

Kenya is renowned for its national parks and the abundance and diversity of wildlife; however, Kenya’s protected areas are too small and fragmented to maintain viable populations of wildlife species. It is now recognized that the survival of most wildlife in Kenya depends on access to land outside government protected areas. These areas are becoming increasingly fragmented and degraded due to change in land use and human population pressure. We believe that to secure Kenya’s ecological integrity and to maintain viable populations of wildlife, land outside protected areas must be conserved through innovative conservation measures such as environmental easements, which not only protect land, but provides benefits to the landowners.

What is an environmental easement?

An environmental easement is a legal agreement between a landowner and another party or organization that restricts certain uses on a property to protect its natural resources for a specific period of time, usually into perpetuity. Environmental easements protect land for future generations while allowing owners to retain certain private property rights and to live on and use their land.

Private land owners possess distinct legal rights, such as the right to farm, develop, sustainable use of forests and water resources. These property rights can be thought of as a “bundle of rights.” Any of these property rights can be transferred to another party for the benefit of wildlife or nature conservation. For example, a landowner can choose to transfer, voluntarily or for a fee, the right to develop his/her land, and still reserve the right to undertake other activities on his/her land.

If you have any questions or concerns about easements, please don’t hesitate to contact the following:

Director, Land Conservation

African Wildlife Foundation

[email protected]

http://www.awf.org

or get in touch with

Executive Director,

Kenya Land Conservation Trust

[email protected]

or visit

our website

http://www.klct.or.ke