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Good-Guy Real Estate

There are a lot of de facto common lands, broadly including city edges, habitat, and lovely views. Whether they accommodate public access or not, they're beneficial to all of us. These common grounds are disappearing and with them the sense that we share the use of some lands. Both lost lands and lost senses of sharing should be a common concern, because our common lands are part of our common heritage.

Whether it's habitat, city neighborhood streets and pocket parks, or just a sense of openness, or peace, or rural feeling, open space may be the only respite from a really crowded world. All of these kinds of spaces ought to be recognized as part of our common good in this country. There are lots of ways to protect them; land trusts are one.

It's important to understand what a land trust is. There's still confusion. The "trust" aspect of land trust is not a legal term. Though there are many legal aspects to holding property, "land trust" is simply a generic term for a nonprofit land conservation organization that works with land owners to help them find ways to protect their property.

Organizations that hold land or conservation easements, or otherwise get land into some conservation-based ownership, are commonly called land trusts. These trusts do not have named beneficiaries in the same sense that a legally set up trust would have; the public is the beneficiary of land trusts. Many land trust organizations are called land conservancies or land foundations. In some states, in fact, you cannot use the term "trust" in your name unless you are a legal trust.

Conservation easements that permanently restrict the uses of a piece of land are a major land trust tool. So are land donations and strategic estate planning. Land trusts also own land outright or operate land which they own for conservation. Sometimes they work in partnership with other organizations or negotiate a deal or acquire a piece of land and then turn it over to some stewardship organization.

The first land trust in the world, the Trustees of Preservation, was formed in 1892 in Massachusetts. Shortly after, a delegation from Britain visited the upstart colonies and were so impressed that when they went back they formed the National Trust. Our sense of property rights is, "I've got the right to keep you out unless I say you can come in," whereas the National Trust helps guard Britain's longer history of public use of private land.

Do People Trust Land Trusts?

If you're the kind of person who is really suspicious of anything unknown, or who really does not want to see land protected, then obviously you won't like land trusts. More and more, though, people recognize that we need to take hold of how our land is used and counter the sprawl and all the unplanned development that we see around us.

Generally land trusts are well accepted, and even eagerly embraced, because they're private organizations and nonprofit groups acting in the voluntary sector. They don't have the power to condemn or to impose regulations. Even if you don't believe the government should be involved in any way, shape, or form in land use, land trusts should not be a threat.

Land trusts are flourishing because people see their success. Land trusts have protected about four million acres of wetlands, ranches, farms, shoreline, forests, recreation land, and cityscapes. There are now well over a thousand land trusts.

Many land trust organizations are involved in partnerships which solve problems that no single entity can resolve on its own. Bringing more players together is a good role for a land trust. It's hard, but over time, protecting big, important acreages of land or protecting ecosystems will demand the joint working out of problems. Land trusts can build partnerships, or at least further an understanding among everyone concerned about the land.

Can Open Markets Protect the Commons?

It's difficult to make sure that the common good is protected. It takes more than just the goodness of our hearts. Even the best-intentioned people's intentions change over time. Because the commons belongs to everybody and belongs to nobody, nobody takes responsibility unless someone takes special steps to insure that land remains in open space or in uses compatible with conservation. Guardians are needed to insure that.

If Central Park hadn't been protected, and the protection specifically spelled out a hundred years ago, the free market probably wouldn't have stayed away from that piece of land. If our national parks hadn't been established proactively, nobody would have said, "Gee, I guess we just won't build here." You have to take some steps, either by acquiring the land through a public agency or a private organization like a land trust, or by acquiring a conservation easement that prohibits certain activities but leaves the land in private ownership.

Long-term Security?

People ask: who is going to enforce this land trust over time? I want my land protected today and I want to be sure that in a hundred years it will still be defended, that somebody will still be making sure that it isn't trashed. Who is going to do that? Of course, no one knows today whether any one organization will exist a hundred years from now, but the land trust movement itself is over a hundred years old, and there are organizations approaching fifty, even one hundred years. How do you know if the organization that you're dealing with is going to be one of them? You want to look carefully at the organization to see how well they're organized and whether they've adopted good standards of practice.

Long-term security is partially established by the way the document is drawn up in the first place. It starts with a sound document that will be enforceable over time. Sometimes a conservation easement can have a back-up holder, in case the first holder goes out of business. The easement should be drawn up to be perpetual. Tax law does not allow deductions on easements that are anything less than perpetual. Sometimes people purchase a term easement, but everybody would have to understand that up-front. We advocate perpetual easements.

Do We Need Land Trust Police?

Learning to enforce agreements requires an accumulation of knowledge and experience. Most easement disputes are settled through negotiation; very few have ended up in the courts. That's good. The courts should be a last resort. If you need them, they're there, and the easement document spells out the terms which allow you to go to court. On the other hand, some easements have arbitration written into them.

We don't have a lot of experience with court cases yet, but when the land starts changing hands, we will. When somebody, through inheritance or purchase, becomes the owner of a piece of property on which there's an easement, that person may not share the conservation ethic that motivated the original owner to protect the land. That's when enforcement is going to become a real issue.

We don't have a land trust police, but we have standards and the recognition that easement stewardship includes monitoring the property regularly, building a long-term relationship with the landowner, and instilling a sense of pride in recognition of good stewardship. All this is designed to diminish the numbers of violations and misunderstandings.