Conservation Easements

C.R.S. tit. 38, art. 30.5
in effect

C.R.S. § 38-30.5-101 Legislative intent

38-30.5-101. Legislative intent. The general assembly finds and declares that it is in the public interest to define conservation easements in gross, since such easements have not been defined by the judiciary. Further, the general assembly finds and declares that it is in the public interest to determine who may receive such easements and for what purpose such easements may be received.

C.R.S. § 38-30.5-102 Conservation easement in gross

38-30.5-102. Conservation easement in gross. "Conservation easement in gross", for the purposes of this article, means a right in the owner of the easement to prohibit or require a limitation upon or an obligation to perform acts on or with respect to a land or water area, airspace above the land or water, or water rights beneficially used upon that land or water area, owned by the grantor appropriate to the retaining or maintaining of such land, water, airspace, or water rights, including improvements, predominantly in a natural, scenic, or open condition, or for wildlife habitat, or for agricultural, horticultural, wetlands, recreational, forest, or other use or condition consistent with the protection of open land, environmental quality or life-sustaining ecological diversity, or appropriate to the conservation and preservation of buildings, sites, or structures having historical, architectural, or cultural interest or value.

C.R.S. § 38-30.5-103 Nature of conservation easements in gross

38-30.5-103. Nature of conservation easements in gross. (1) A conservation easement in gross is an interest in real property freely transferable in whole or in part for the purposes stated in section 38-30.5-102 and transferable by any lawful method for the transfer of interests in real property in this state. (2) A conservation easement in gross shall not be deemed personal in nature and shall constitute an interest in real property notwithstanding that it may be negative in character. (3) A conservation easement in gross shall be perpetual unless otherwise stated in the instrument creating it. (4) The particular characteristics of a conservation easement in gross shall be those granted or specified in the instrument creating the easement. (5) A conservation easement in gross that encumbers water or a water right as permitted by section 38-30.5-104 (1) may be created only by the voluntary act of the owner of the water or water right and may be made revocable by the instrument creating it. (6) On and after January 1, 2020, prior to creating a conservation easement in gross, the owner of the property who is granting the conservation easement shall execute a disclosure form that includes, but is not limited to, an acknowledgment that the conservation easement is being granted in perpetuity. The division of conservation in cooperation with the conservation easement oversight commission shall develop the disclosure form and publish the approved form on its website. The signed disclosure form must be submitted to the division of conservation as part of the tax credit application. (7) A conservation easement in gross is a real property interest as defined in section 38-30.5-102 that is to be created, administered, stewarded, enforced, modified, and terminated pursuant to this article 30.5 and, as applicable, section 39-22-522.

C.R.S. § 38-30.5-104 Creation of conservation easements in gross

38-30.5-104. Creation of conservation easements in gross. (1) A conservation easement in gross may only be created by the record owners of the surface of the land and, if applicable, owners of the water or water rights beneficially used thereon by a deed or other instrument of conveyance specifically stating the intention of the grantor to create such an easement under this article. (2) A conservation easement in gross may only be created through a grant to or a reservation by a governmental entity, including the division of conservation created in section 12-15-102, or a grant to or a reservation by a charitable organization exempt under section 501 (c)(3) of the federal "Internal Revenue Code of 1986", as amended, which organization was created at least two years prior to receipt of the conservation easement. (3) Repealed. (4) Conservation easements relating to historical, architectural, or cultural significance may only be applied to buildings, sites, or structures which have been listed in the national register of historic places or the state register of historic properties, which have been designated as a landmark by a local government or landmarks commission under the provisions of the ordinances of the locality involved, or which are listed as contributing building sites or structures within a national, state, or locally designated historic district. (5) If a water right is represented by shares in a mutual ditch or reservoir company, a conservation easement in gross that encumbers the water right may be created or revoked only after sixty days' notice and in accordance with the applicable requirements of the mutual ditch or reservoir company, including, but not limited to, its articles of incorporation and bylaws as amended from time to time.

C.R.S. § 38-30.5-105 Residual estate

38-30.5-105. Residual estate. All interests not transferred and conveyed by the instrument creating the easement shall remain in the grantor of the easement, including the right to engage in all uses of the lands or water or water rights affected by the easement that are not inconsistent with the easement or prohibited by the easement or by law.

C.R.S. § 38-30.5-106 Recordation upon public records

38-30.5-106. Recordation upon public records. Instruments creating, assigning, or otherwise transferring conservation easements in gross must be recorded upon the public records affecting the ownership of real property in order to be valid and shall be subject in all respects to the laws relating to such recordation.

C.R.S. § 38-30.5-107 Release - termination

38-30.5-107. Release - termination. If it is determined that conditions on or surrounding a property encumbered by a conservation easement in gross change so that it becomes impossible to fulfill its conservation purposes that are defined in the deed of conservation easement, a court with jurisdiction may, at the joint request of both the owner of property encumbered by a conservation easement and the holder of the easement, terminate, release, extinguish, or abandon the conservation easement. If condemnation by a public authority of a part of a property or of the entire property encumbered by a conservation easement in gross renders it impossible to fulfill any of the conservation purposes outlined in the deed of conservation easement, the conservation easement may be terminated, released, subordinated, extinguished, or abandoned in whole or in part through condemnation proceedings. A conservation easement in gross for which a Colorado state income tax credit has been allowed may not in whole or in part be released, terminated, extinguished, or abandoned by merger with the underlying fee interest in the servient land or water rights. Any release, termination, or extinguishment of a conservation easement under this section must be recorded in the records of the office of the clerk and recorder in the county where the conservation easement is located.

C.R.S. § 38-30.5-107.5 Condemnation of property encumbered by a conservation easement in gross - determination of just compensation

38-30.5-107.5. Condemnation of property encumbered by a conservation easement in gross - determination of just compensation. If property encumbered by a conservation easement in gross created in accordance with the requirements of section 38-30.5-104 is condemned in accordance with the requirements of articles 1 to 7 of this title 38, and, as a result of the condemnation, the condemning authority is acquiring such property free and clear of the conservation easement interest or subordinating the deed of conservation easement to such acquired property interest, just compensation must be determined based on the value of the property as if unencumbered by the conservation easement in gross and must be allocated between the fee owner and the holder of the conservation easement based upon the value of their respective interests in the property. This section does not affect or limit damages to which a holder of a conservation easement in gross is entitled under section 38-30.5-108 (3).

C.R.S. § 38-30.5-108 Enforcement - remedies

38-30.5-108. Enforcement - remedies. (1) No conservation easement in gross shall be unenforceable by reason of lack of privity of contract or lack of benefit to particular land or because not expressed as running with the land. (2) Actual or threatened injury to or impairment of a conservation easement in gross or the interest intended for protection by such easement may be prohibited or restrained by injunctive relief granted by any court of competent jurisdiction in a proceeding initiated by the grantor or by an owner of the easement. (3) In addition to the remedy of injunctive relief, the holder of a conservation easement in gross shall be entitled to recover money damages for injury thereto or to the interest to be protected thereby. In assessing such damages, there may be taken into account, in addition to the cost of restoration and other usual rules of the law of damages, the loss of scenic, aesthetic, and environmental values.

C.R.S. § 38-30.5-109 Taxation

38-30.5-109. Taxation. Conservation easements in gross 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 or more conservation easements in gross 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 such easement, shall equal the valuation for assessment which would have been determined as to such lands if there were no conservation easement.

C.R.S. § 38-30.5-110 Other interests not impaired

38-30.5-110. Other interests not impaired. No interest in real property cognizable under the statutes, common law, or custom in effect in this state prior to July 1, 1976, nor any lease or sublease thereof at any time, nor any transfer of a water right or any change of a point of diversion decreed prior to the recordation of any conservation easement in gross restricting a transfer or change shall be impaired, invalidated, or in any way adversely affected by reason of any provision of this article. No provision of this article shall be construed to mean that conservation easements in gross were not lawful estates in land prior to July 1, 1976. Nothing in this article shall be construed so as to impair the rights of a public utility, as that term is defined by section 40-1-103, C.R.S., with respect to rights-of-way, easements, or other property rights upon which facilities, plants, or systems of a public utility are located or are to be located. Any conservation easement in gross concerning water or water rights shall be subject to the "Water Right Determination and Administration Act of 1969", as amended, article 92 of title 37, C.R.S., and any decree adjudicating the water or water rights.

C.R.S. § 38-30.5-111 Validation

38-30.5-111. Validation. (1) Any conservation easement in gross created on or after July 1, 1976, but before July 1, 1985, that would have been valid under this article except for section 38-30.5-104 (3) is valid and shall be a binding, legal, and enforceable obligation. (2) Any conservation easement in gross affecting water rights created prior to August 6, 2003, shall be a binding, legal, and enforceable obligation if it complies with the requirements of this article.

C.R.S. § 38-30.5-112 Conservation easement - task force - creation - report - legislative declaration - repeal

38-30.5-112. Conservation easement - task force - creation - report - legislative declaration - repeal. (Repealed)
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