WeConservePA has updated two guides in its library: Trail Easements and Not a Charitable Trust: the Donated Conservation Easement in Pennsylvania.
- The Trail Easements guide addresses how a property owner may convey to others the rights to create, maintain, and use a trail on their property without giving up ownership and enjoyment of the land through which the trail passes. By donating or selling a trail easement to a trail group, land trust, municipality, authority, or other charitable or governmental entity (the “holder” of the easement), landowners (the “owners”) may make their land available for a public trail for walking, running, bicycling, or other recreational or transportation purposes without having to subdivide the land or lose ownership and control of the land. In the trail easement document that establishes the easement, the owners and holder may set the terms governing how the trail is built, maintained, and used.
- The guide Not a Charitable Trust: the Donated Conservation Easement in Pennsylvania addresses some history and precedent involving whether or not donated conservation easements count as charitable trusts subject to outside governance in Pennsylvania. Little evidence exists to support the proposition that a donated conservation easement, in the absence of a charitable trust agreement, is a charitable trust in Pennsylvania; indeed, there is compelling evidence to the contrary. By statute and by common law interpretation in Pennsylvania, a conservation easement is a real estate interest and is governed by real estate law, in particular, the law of servitudes. In the mid-2010s, a proposition that conservation easements are also governed by a second body of law—that of charitable trusts—drew attention in various forums. Advocates for the proposition asserted that all gifts (as distinct from sales) of conservation easements create charitable trusts. Many long-time practitioners in the conservation easement field strongly disagreed and continue to disagree with the proposition. This guide, first published in 2015 and lightly edited for clarity and minor updates in 2022, focuses on the charitable trust proposition as it applies to Pennsylvania, and finds in its analysis that the charitable trust proposition is demonstrably false in Pennsylvania.