Conservation Easements

 

382.800 Definitions.

As used in KRS 382.810 to 382.860, unless the context otherwise requires:

(1) "Conservation easement" means a nonpossessory interest of a holder in real

property imposing limitations or affirmative obligations, the purposes of which

include retaining or protecting natural, scenic, or open-space values of real property,

assuring its availability for agricultural, forest, recreational, or open-space use,

protecting natural resources, maintaining or enhancing air or water quality, or

preserving the historical, architectural, archaeological, or cultural aspects of real

property.

(2) "Holder" means:

(a) A governmental body empowered to hold an interest in real property under the

laws of this state or the United States; or

(b) A charitable corporation, charitable association, or charitable trust, the

purposes or powers of which include retaining or protecting the natural,

scenic, or open-space values of real property, assuring the availability of real

property for agricultural, forest, recreational, or open-space use, protecting

natural resources, maintaining or enhancing air or water quality, or preserving

the historical, architectural, archaeological, or cultural aspects of real property.

(3) "Third-party right of enforcement" means a right provided in a conservation

easement to enforce any of its terms granted to a governmental body, charitable

corporation, charitable association, or charitable trust, which, although eligible to be

a holder, is not a holder.

Effective: July 15, 1988

History: Created 1988 Ky. Acts ch. 251, sec. 1, effective July 15, 1988.

 

382.810 Creation -- Acceptance and recordation necessary -- Duration --

Preexisting property interest.

(1) Except as otherwise provided in KRS 382.810 to 382.860, a conservation easement

may be created, conveyed, recorded, assigned, released, modified, terminated, or

otherwise altered or affected in the same manner as other easements.

(2) No right or duty in favor of or against a holder and no right in favor of a person

having a third-party right of enforcement shall arise under a conservation easement

before its acceptance by the holder and a recordation of the acceptance.

(3) Except as provided in KRS 382.820(2), a conservation easement shall be unlimited

in duration unless the instrument creating it otherwise provides.

(4) An interest in real property in existence at the time a conservation easement is

created shall not be impaired by it unless the owner of the interest is a party to the

conservation easement or consents to it.

Effective: July 15, 1988

History: Created 1988 Ky. Acts ch. 251, sec. 2, effective July 15, 1988.

 

382.820 Actions affecting easements.

(1) An action affecting a conservation easement may be brought by:

(a) An owner of an interest in the real property burdened by the easement;

(b) A holder of the easement;

(c) A person having a third-party right of enforcement; or

(d) A person authorized by other law.

(2) KRS 382.810 to 382.860 shall not affect the power of a court to modify or terminate

a conservation easement in accordance with the principles of law and equity.

Effective: July 15, 1988

History: Created 1988 Ky. Acts ch. 251, sec. 3, effective July 15, 1988.

 

382.830 Validity of easement.

A conservation easement shall be valid even though:

(1) It is not appurtenant to an interest in real property;

(2) It can be or has been assigned to another holder;

(3) It is not of a character that has been recognized traditionally at common law;

(4) It imposes a negative burden;

(5) It imposes affirmative obligations upon the owner of an interest in the burdened

property or upon the holder;

(6) The benefit does not touch or concern real property; or

(7) There is no privity of estate or of contract.

Effective: July 15, 1988

History: Created 1988 Ky. Acts ch. 251, sec. 4, effective July 15, 1988.

 

382.840 Applicability and effect.

(1) KRS 382.800 to 382.860 shall apply to any interest created after July 15, 1988,

which complies with KRS 382.800 to 382.860, whether designated as a

conservation easement or as a covenant, equitable servitude, restriction, easement,

or otherwise.

(2) KRS 382.800 to 382.860 shall apply to any interest created before July 15, 1988, if

it would have been enforceable had it been created after July 15, 1988, unless

retroactive application contravenes the constitution or laws of this state or the

United States.

(3) KRS 382.800 to 382.860 shall not invalidate any interest, whether designated as a

conservation or preservation easement or as a covenant, equitable servitude,

restriction, easement, or otherwise, that is enforceable under other law of this state.

Effective: July 15, 1988

History: Created 1988 Ky. Acts ch. 251, sec. 5, effective July 15, 1988.

 

382.850 Transfer of easement -- Effect on mining operations and on eminent

domain powers.

(1) A conservation easement shall not be transferred by owners of property in which

there are outstanding subsurface rights without the prior written consent of the

owners of the subsurface rights.

(2) A conservation easement shall not operate to limit, preclude, delete or require

waivers for the conduct of coal mining operations, including the transportation of

coal, upon any part or all of adjacent or surrounding properties; and shall not

operate to impair or restrict any right or power of eminent domain created by

statute, and all such rights and powers shall be exercisable as if the conservation

easement did not exist.

Effective: July 15, 1988

History: Created 1988 Ky. Acts ch. 251, sec. 6, effective July 15, 1988.

 

382.860 Application and construction -- Uniformity of interpretation.

KRS 382.800 to 382.860 shall be applied and construed to effectuate its general purpose

to make uniform the laws with respect to conservation easements among states enacting

them.

Effective: July 15, 1988

History: Created 1988 Ky. Acts ch. 251, sec. 7, effective July 15, 1988.