2002

State of Wyoming

02LSO-0025.W4

 

 

 

WORKING DRAFT

 

 

 

HOUSE BILL NO.

 

 

Conservation easement.

 

Sponsored by:

 

A BILL

 

for

 

AN ACT relating to real property; providing for creation and conveyance of conservation easements as specified; providing definitions; providing for disclosure provisions; providing for actions and validity; reserving right of the state regarding eminent domain and to tax interests created; requiring the consent of the state in certain circumstances; providing licensing requirements; and providing for an effective date.

 

Be It Enacted by the Legislature of the State of Wyoming:

 

Section 1.  W.S. 34-1-201 through 34-1-207 are created to read:

 

ARTICLE 2

 

CONSERVATION EASEMENT ACT

 

34-1-201.  Short title; definitions.

 

(a)  This act shall be known and may be cited as the "Conservation Easement Act."

 

(b)  As used in this act:

 

(i)  "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 agriculture, forest, recreational or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archeological or cultural aspects of real property;

 

(ii)  "Holder" means:

 

(A)  A governmental body empowered to hold an interest in real property under the laws of this state or the United States, except that no interest shall be transferred to the United States government without the consent of the state board of land commissioners; or

 

(B)  A charitable corporation, charitable association or charitable trust, a primary purpose or power of which includes 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, archeological or cultural aspects of real property.

 

(iii)  "Third-party right of enforcement" means a right specifically 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;

 

(iv)  "This act" means W.S. 34-1-201 through 34-1-207.

 

34-1-202.  Creation; conveyance; acceptance and duration.

 

(a)  Except as otherwise provided in this act, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated, in whole or in part, by release, abandonment, merger, nonrenewal, by conditions set forth in the instrument creating the conservation easement or otherwise altered or affected in the same manner as other easements.  The provisions of W.S. 34-1-141 shall apply to this act.

 

(b)  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 arises under a conservation easement before its acceptance by the holder and a recordation of the acceptance.

 

(c)  A conservation easement shall not exceed a duration of fifty (50) years or five (5) years after the death of the grantor, whichever time comes first and shall terminate at that time.  For purposes of property taxes, valuation shall be assessed in accordance with W.S. 34-1-204.

 

(d)  An interest in real property and any interest in minerals including a leasehold interest in existence at the time a conservation easement is created is not impaired in any way by the conservation easement unless the owner of that interest is a party to the conservation easement or consents to it.

 

     (e)  A conservation easement which otherwise is in compliance with this act may be granted after death by the executor of the estate of a landowner pursuant to the provisions of subsection (c) of this section.

 

     34-1-203.  Disclosure requirements.

 

     (a)  No conservation easement shall be created, conveyed, recorded, assigned, released, modified, terminated, altered or otherwise affected unless full disclosure is made by the holder and consent is given by the landowner regarding the effect of the conservation easement.  The disclosure and consent document shall be attached to the deed and recorded.

 

     (b)  The requirements of W.S. 34-1-101 through 34-1-150 shall apply to this act to the extent that those requirements are not in conflict with the specific provisions of this act.

 

     (c)  Disclosure and consent documents that do not substantially comply with this section shall be void.  The disclosure and consent document shall be attached to and recorded with the deed.  The disclosure document shall have substantially the following information:

 

          (i)   The parties shall certify that the land with legal description is being conveyed or assigned under specified conditions that are set out in the document;

 

          (ii)  The parties shall specify the difference in the value of the property before and after the conservation easement is created;

 

          (iii)  The parties shall specifically designate the activities and things permitted or preserved by the conservation easement and the activities permitted or prohibited by the landowner;

 

          (iv)  The parties shall specifically state the effect of violating the provisions of the disclosure and consent document.

 

     34-1-204.  Taxation.

 

Conservation easements shall be subject to assessment, taxation or exemption from taxation in accordance with general laws applicable to the assessment and taxation of interests in real property.  Real property subject to one (1) or more conservation easements shall be assessed, however, with due regard to the restricted uses to which the property may be devoted.  The valuation for assessment of a conservation easement which is subject to assessment and taxation plus the valuation for assessment of lands subject to the easement shall equal the valuation for assessment which would have been determined as to the lands if there were no conservation easement.  The holder of the conservation easement shall pay the portion of the tax attributable to the conservation easement.  The value of the interest held by a charitable corporation, charitable association or charitable trust shall not be exempt from taxation.  Notwithstanding the provisions of Title 39 that requires property tax assessment annually and W.S. 18-3-204 that requires the county assessor to perform certain duties on an annual basis, property tax valuation shall be assessed every five (5) years.  All other applicable provisions of Title 39 and W.S. 18-3-204 shall apply.

***  STAFF COMMENTS  ***

 

Title 39 has many provisions relating to property taxes that require annual activities.  W.S. 18-3-204 also requires the county assessor to value and assess property on an annual basis.

 

 

34-1-205.  Judicial action; modification; termination.

 

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

 

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

 

(ii)  A holder of the easement;

 

(iii)  A person having third-party rights of enforcement, as specifically named in the instrument creating the easement.  There shall be no third-party rights of enforcement if the right is not named in the instrument creating the easement.

 

(b)  This act shall not affect the power of a court to modify or terminate a conservation easement in accordance with the principles of law and equity.

 

(c)  No interest which complies with the requirements of this act, whether designated as a conservation easement or as a covenant, equitable servitude, restriction, easement or otherwise shall be construed as impairing the right of eminent domain as provided by Wyoming law or the right of the state to tax any interest created under this act, consistent with the provisions of Wyoming law as it may be amended.

 

34-1-206.  Validity.

 

(a)  A conservation easement is valid even though:

 

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

 

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

 

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

 

(iv)  It imposes a negative burden;

 

(v)  It imposes affirmative obligations upon the owner of an interest in the burdened property or upon the holder;

 

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

 

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

 

34-1-207.  Applicability.

 

(a)  This act shall apply to any interest meeting the definition of W.S. 34-1-201(b)(i) which is created pursuant to this act after its effective date whether designated as a conservation easement or as a covenant, equitable servitude, restriction, easement or otherwise.

 

(b)  This act shall apply to any interest meeting the definition of W.S. 34-1-201(b)(i) which is created before its effective date if it would have been enforceable had it been created after the effective date of this act unless retroactive application contravenes the constitution or laws of this state or the United States.

 

(c)  This act does not invalidate any interest whether designated as a conservation or preservation easement, a covenant, equitable servitude, restriction, easement or other designation that is enforceable under any other law of this state.

 

Section 2.  W.S. 39-11-105(a)(xxvi) is amended to read:

 

39-11-105.  Exemptions.

 

(a)  The following property is exempt from property taxation:

 

(xxvi)  Property used by a secret, benevolent and charitable society or association, including any fraternal organization officially recognized by the University of Wyoming or any community college, and senior citizens centers to the extent it is not used for private profit nor primarily for commercial purposes by the society, association or center, or lessee thereof except as provided for in W.S. 34-1-204;

 

 Section 3.  This act is effective July 1, 2002.

 

(END)