SAMPLE GRANT OF CONSERVATION EASEMENT    

[This document is a sample conservation easement. The terms of any actual conservation easement should be tailored to address the specific conservation values of the property proposed for protection, and the specific needs and requirements of the landowner.]

This grant of a Conservation Right and Easement, made by XXX, and YYY, husband and wife, their heirs, assigns and successors in title, (hereinafter referred to as the "grantor") to the MEDINA COUNTY LAND CONSERVANCY, a not-for-profit corporation organized under the laws of the State of Ohio, whose address is P.O. Box 141, Medina, Ohio 44258 (hereinafter referred to as the "grantee").

WHEREAS, grantor is the owner in fee simple of certain real property situated in the Township of Medina, County of Medina, and State of Ohio, more particularly described as follows:

[Insert legal description.]

which Grantors claim title to pursuant to a ___________deed from _______________ to Grantors, recorded at OR _____, PG ______ of the Medina County Recorder's Office, hereafter referred to as the Protected Property; and

WHEREAS, the Protected Property is located within the Rocky River Watershed, and has substantial value as a scenic, natural, aesthetic and educational resource in its present state as a natural and wooded area, as habitat for fish, plants and wildlife; and

WHEREAS, there is presently situated on the Protected Property a single family residential dwelling, said dwelling being located within an area of mown grass and trees; such area being hereafter referred to as the "Residential Area", and is described as follows:

[NOTE: Ideally a legal description would follow, as prepared by a qualified surveyor, including total acreage] ; and

WHEREAS, the remaining portion of the Protected Property which is not encompassed by the Residential Area described above is woodlands and natural vegetation; and

WHEREAS, the grantor and grantee recognize the aforesaid scenic, natural, aesthetic and educational values of the Protected Property in its present state, and have, by the conveyance of a Conservation Easement to the grantee, the common purpose of conserving these values of the Protected Property, and preventing the use or development of the Protected Property for any purpose or in any manner which would conflict with the maintenance of the Protected Property in its natural, scenic, open and wooded condition, as suitable habitat for wild native and naturalized flora and fauna of all types; and

WHEREAS, the Grantee is a charitable organization (a) authorized to acquire and hold conservation easements pursuant to Section 5301.69(B) of the Ohio Revised Code; (b) of the kind described in Section 501(c)(3) of the Internal Revenue Code (P.L. 96-541), as presently in effect; and (c) that meets the public support test set forth in Section 509(a)(2) of the Internal Revenue Code, whose primary purpose is the preservation and protection of land in its natural, scenic, agricultural, forested, and/or open space condition in and about Medina County, Ohio; and

WHEREAS, the grantors intend, as owners of the Protected Property, to convey to grantee the right to preserve and protect the conservation values of the property in perpetuity in accordance with the terms of this document, and

WHEREAS, grantee is willing to accept this Conservation Easement, to preserve and protect the conservation values of the property in perpetuity in accordance with the terms of this document for the benefit of this generation and generations to come, subject nevertheless to the reservations and to the terms and conditions and obligations set out herein and imposed hereby;

NOW THEREFORE, for in consideration of the promises and the foregoing recitations and in further consideration of the mutual covenants, terms, conditions and restrictions hereinafter set forth, with the intention of making an absolute and unconditional gift, the grantor does hereby grant, give, and convey unto the grantee and its successors, forever and in perpetuity, a Conservation Easement of the nature and character and to the extent hereinafter set forth, in, upon, and over the Protected Property, for the purposes of preserving, protecting, and maintaining the Protected Property as a scenic, natural, and wooded area, as habitat for fish, plants and wildlife, pursuant to the laws of the State of Ohio, and particularly Ohio Revised Code sections 5301.67 through 5301.70.

The terms, conditions, and restrictions of the Conservation Easement are as follows:

  1. Purpose: It is the purpose of this Easement to assure that the Protected Property is maintained forever in its natural, scenic, open and wooded condition, as a natural environmental system suitable for wild native and naturalized flora and fauna of all types, or the natural state that the Protected Property assumes during the course of undisturbed ecological succession, as a natural environmental system for the protection and preservation of the biodiversity and ecological resources of the region, restricting all other development, save the current use of the Protected Property as sustaining one single-family residence. Grantors intend that the Easement will confine the use of the Protected Property to such activities as are consistent with the purpose of this Easement.

  2. Rights reserved by Grantor: Notwithstanding the other provisions herein, the Grantor specifically reserves, for Grantor and Grantor's personal representatives, heirs, successors, and assigns, the following rights:

    1. To use, maintain and repair the single family residence currently existing on the Residential Area of the Protected Property, to remodel or construct additions to the currently existing residence, or to demolish the currently existing residence and build a new residence, provided that any expansion or replacement of an existing building, structure or improvement may not substantially alter its character or function or increase its present height or land surface area it occupies by more than fifty percent without prior written approval of Grantee; and so long as such construction and use does not significantly harm or impair the conservation values of the Protected Property as expressed above.

    2. To maintain the Residential Area on the Protected Property in any manner consistent with single family residential use, as long as such activity does not violate the conservation restrictions herein as they apply to the remaining portion of the Protected Property, including but not limited to cutting grass, trimming bushes, and planting and removing various kinds of vegetation within the boundaries of the currently existing Residential Area.

    3. To construct ponds, plant native and naturalized vegetation, and make other alterations to the Protected Property as may be necessary or advisable to maximize the value of the Protected Property for providing natural habitat to native and naturalized flora and fauna, as may be previously approved in writing by the grantee for such purpose. Grantee’s approval shall not be required for such activity on the Residential Area.

    4. To exercise all rights accruing from Grantor's ownership of the Property, including the right to engage in, or permit or invite others to engage in, all uses of the Property that are not expressly prohibited and are not inconsistent with the purpose of this Easement.

  3. Prohibited uses: Any activity that is inconsistent with the purpose of this Easement is prohibited. Without limiting the generality of the foregoing, the following activities and uses are expressly prohibited:

    1. No buildings or other structures, including but not limited to billboards, advertising material, and fences, shall be hereafter erected or placed on the Protected Property, except as otherwise provided in this Easement. The Grantee may erect signs on the property as it deems necessary to warn the public of hazards (if any), to warn the public of any or all activities prohibited on the Protected Property by the terms of this Easement, and to identify the Grantee.

    2. The Protected Property shall not be platted or subdivided or otherwise divided, conveyed, leased, or transferred in more than one single parcel

    3. There shall be no dumping of soil, trash, ashes, garbage, waste, or other unsightly, offensive or harmful material on or in the Protected Property, and no changing of its topography through the placing of soil or other substance or material such as land fill or dredging spoils.

    4. There shall be no fillings, excavation, dredging, mining, drilling or removal of loam, gravel, soil, rock, sand, minerals, or other materials, nor any building of roads or other change in the general topography of the land on the Protected Property in any manner excepting the maintenance of existing vehicular access ways.

    5. There shall be no removal, destruction, or cutting, of trees, shrubs, or other vegetation on the Protected Property except as may be necessary for (1) the maintenance of existing vehicular access ways, (2) other good husbandry practices consistent with the written recommendations of the Ohio Department of Natural Resources Forestry Division specific to the Protected Property, or some other appropriate agency approved in writing by Grantee, so long as such recommendations are made consistent with the purposes of this Easement, which may include the removal of dead or damaged trees or branches that present a safety hazard, or (3) other circumstances specified in this document.

    6. There shall be no activities, actions, or uses detrimental or adverse to water conservation, erosion control, soil conservation, and fish and wildlife or habitat preservation on the Protected Property.

    7. There shall be no manipulation or alteration of natural water courses, lake shores, marshes, or other water bodies or activities or use detrimental to water purity, providing that existing small dams, ponds on the Protected Property may be maintained and repaired. Grantee reserves the right, however, to remove brush, trees, and silt from water courses as they grow and accumulate to the extent that the natural flow is impeded and there exists the potential of flooding of adjoining privately owned property.

    8. There shall be no operation of snowmobiles, all-terrain vehicles (ATVs), motorcycles, or any motorized vehicles on the Protected Property. The Grantor retains, however, the right to use motorized vehicles for normal access to the residence and other buildings on the Protected Property, provided that such activity does not damage mature trees on the Protected Property.

    9. There shall be no hunting or trapping on the Protected Property.

  4. Rights of Grantee: To accomplish the purpose of this Easement, the following rights are conveyed to Grantee by this Easement:

    1. To preserve and protect the conservation values of the Protected Property;

    2. To enter upon the Protected Property at all reasonable times in order to monitor the condition of the Protected Property and to monitor Grantor's compliance with the terms of this Conservation Easement, and further to observe and study nature and to make scientific and educational observations and studies in such manner as will not disturb the quiet enjoyment of the Protected Property by anyone lawfully in possession thereof. The right of inspection does not include the interior of buildings thereon.

    3. To prevent any activity on or use of the Protected Property that is inconsistent with the purpose of this Easement and to require the restoration of such areas or features of the Protected Property that may be damaged by any inconsistent activity or use, pursuant to paragraph 5.

    4. The Grantee may take, permit, or authorize action in opposition to the other restrictions contained in this easement only if such action is absolutely necessary for the preservation of the Protected Property as a natural area for providing natural habitat to, and improving the health and vitality of, native and naturalized flora and fauna, or to protect natural, threatened, or endangered species on or about the Protected Property.

  5. Grantee's Remedies. If Grantee determines that Grantors are in violation of the terms of this Easement or that a violation is threatened, Grantee shall give written notice to Grantors of such violation and demand corrective action sufficient to cure the violation and, where the violation involves injury to the Property resulting from any use or activity inconsistent with the purpose of this Easement, to restore the portion of the Property so injured. If Grantors fail to cure the violation within 30 days after receipt of notice thereof from Grantee, or under circumstances where the violation cannot reasonably be cured within a 30 day period, fail to begin curing such violation within the 30 day period, or fail to continue diligently to cure such violation until finally cured, Grantee may bring an action at law or in equity in a court of competent jurisdiction to enforce the terms of this Easement, to enjoin the violation, ex parte as necessary, by temporary or permanent injunction, to recover any damages to which it may be entitled for violation of the terms of this Easement or injury to any conservation values protected by this Easement, including damages for the loss of scenic, aesthetic, or environmental values, and to require the restoration of the Property to the condition that existed prior to any such injury. Without limiting Grantors' liability therefore, Grantee, in its sole discretion, may apply any damages recovered to the cost of undertaking any corrective action on the Property. If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate significant damage to the conservation values of the Property, Grantee may pursue its remedies under this paragraph without prior notice to Grantors or without waiting for the period provided for cure to expire. Grantee's rights under this paragraph apply equally in the event of either actual or threatened violations of the terms of this Easement, and Grantors agree that Grantee's remedies at law for any violation of the terms of this Easement are inadequate and that Grantee shall be entitled to the injunctive relief described in this paragraph, both prohibitive and mandatory, in addition to such other relief to which Grantee may be entitled, including specific performance of the terms of this Easement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. Grantee's remedies described in this paragraph shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity.

  6. Costs of Enforcement. Any costs incurred by Grantee in enforcing the terms of this Easement against Grantors, including, without limitation, costs of suit and attorneys' fees, and any costs of restoration necessitated by Grantors' violation of the terms of this Easement shall be borne by Grantors. If Grantors prevail in any action to enforce the terms of this Easement, Grantors' costs of suit, including, without limitation, attorneys' fees, shall be borne by Grantee.

  7. Grantee's Discretion. Enforcement of the terms of this Easement shall be at the discretion of Grantee, and any forbearance by Grantee to exercise its rights under this Easement in the event of any breach of any term of this Easement by Grantors shall not be deemed or construed to be a waiver by Grantee of such term or of any subsequent breach of the same or any other term of this Easement or of any of Grantee's rights under this Easement. No delay or omission by Grantee in the exercise of any right or remedy upon any breach by Grantors shall impair such right or remedy or be construed as a waiver.

  8. Waiver of Certain Defenses. Grantors hereby waive any defense of laches, estoppel, or prescription.

  9. Acts Beyond Grantors' Control. Nothing contained in this Easement shall be construed to entitle Grantee to bring any action against Grantors for any injury to or change in the Property resulting from causes beyond Grantors' control, including, without limitation, fire, flood, storm, trespassers, vandals and earth movement, or from any prudent action taken by Grantors under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes.

  10. Easement in subsequent title: The grantor agrees that the terms, conditions, restrictions, and purposes of this Conservation Easement will be inserted by them in any subsequent deed, or other legal instrument, by which it divests itself of either the fee simple title to or of their possessory interest in the Protected Property.

  11. Taxes, assessments, costs and liabilities: The Grantors and their successors and assigns shall pay all real estate taxes and assessments validly levied against the Protected Property, including such taxes and assessments validly levied against the Conservation Easement by competent authorities. Grantors retain all responsibilities and shall bear all costs and liabilities of any kind relating to the ownership, operation, upkeep and maintenance of the Protected Property, including the maintenance of adequate comprehensive general liability insurance coverage.

  12. Hold harmless and representations: Grantors shall hold harmless, indemnify and defend Grantee and its members, directors, officers, employees, agents and contractors and the heirs and assigns of each, from and against all liabilities, costs, damages and claims of any kind, including reasonable attorney's fees, arising from or in any way connected with property damage, or personal injury or death of any person resulting from any act, omission, condition or other matter related to or occurring on or about the Protected Property, regardless of cause, and including the presence of, or release in, on, from or about the Property, at any time, of any substance now or hereafter defined or classified by any federal, state or local law, regulation or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment (collectively "harmful substances"), unless due solely to the negligence of any of the indemnified parties. Grantors represent and warrant that, after reasonable investigation and to the best of their knowledge, no harmful substance has now or ever has been released, generated, treated, stored, used, disposed of, deposited, abandoned or transported in, on, from, or across the Property.

  13. Condemnation: If the Protected Property or any part thereof shall be taken by condemnation, this Conservation Easement shall terminate automatically as to the property so taken, to the end that grantor or its successor may be as fully compensated as though this Conservation Easement had never been granted. Grantors and the Grantee shall join in appropriate actions at the time of such taking to recover the full value of the taking and all incidental or direct damages resulting from the taking, and all expenses incurred by the Grantors and the Grantee in such action shall be paid out of the recovered proceeds. The condemnation award made in such taking shall be then shared by the grantor and grantee by apportioning to the grantor the value of such taken property, part or interest as limited by the restrictions contained in this Conservation Easement, and apportioning to the grantee the difference, if any, between such value and the total condemnation award. This Conservation Easement shall remain in full force and effect with respect to any portion of the Protected Property not taken by such condemnation proceedings.

  14. Extinguishment. This Easement can only be terminated or extinguished, whether in whole or in part, by judicial proceedings initiated by Grantee in a court of competent jurisdiction upon a finding in said court that circumstances have arisen that renders the purpose of this Easement impossible to accomplish. The amount of the proceeds to which Grantee shall be entitled, after the satisfaction of prior claims, from any sale, exchange, or involuntary conversion of all or any portion of the Property subsequent to such termination or extinguishment, shall be the stipulated fair market value of the Easement, or proportionate part thereof, as determined below.

  15. Valuation. This Easement constitutes a real property interest immediately vested in Grantee, which, for the purposes of paragraph 12, the parties stipulate to have a fair market value determined by multiplying (1) the fair market value of the Property unencumbered by the Easement (minus any increase in value after the date of this grant attributable to improvements) by (2) the ratio of the value of the Easement at the time of this grant to the value of the Property, without deduction for the value of the Easement, at the time of this grant. The values at the time of this grant shall be those values used to calculate the deduction for federal income tax purposes allowable by reason of this grant, pursuant to Section 170(h) of the Internal Revenue Code. For the purposes of this paragraph, the ratio of the value of the Easement to the value of the Property unencumbered by the Easement shall remain constant.

  16. Application of Proceeds. Grantee shall use any proceeds received under the circumstances described in this section in a manner consistent with its conservation purposes, which are exemplified by this grant.

  17. Assignment. This Easement is transferable, but Grantee may assign its rights and obligations under this Easement only to an organization that is a qualified organization at the time of transfer under Section 170(h) of the Internal Revenue Code (or any successor provision then applicable), and authorized to acquire and hold conservation easements under Ohio Revised Code sections 5301.67 through 5301.70, or any successor provision then applicable, or the laws of the United States. As a condition of such transfer, Grantee shall require that the conservation purpose that this grant is intended to advance continue to be carried out. Grantee agrees to give written notice to Grantors of an assignment at least thirty (30) days prior to the date of such assignment. The failure of Grantee to give such notice shall not affect the validity of such assignment nor shall it impair the validity of this Easement or limit its enforceability in any way.

  18. Recordation. Grantee shall record this instrument in timely fashion in the official records of Medina County, Ohio, and may re-record it at any time as may be required to preserve its rights in this Easement.

  19. General Provisions.

    1. Controlling Law. The interpretation and performance of this Easement shall be governed by the laws of the State of Ohio.

    2. Liberal Construction. Any general rule of construction to the contrary notwithstanding this Easement shall be liberally construed in favor of the grant to effect the purpose of this Easement and the policy and purpose of Ohio statute. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purpose of this Easement that would render the provision valid shall be favored over any interpretation that would render it invalid.

    3. Severability. If any provision of this Easement, or the application thereof to any person or circumstance, is found to be invalid, the remainder of the provisions of this Easement, or the application of such provision to persons or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby.

    4. Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to the Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged herein.

    5. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect.

    6. Joint Obligation. The obligations imposed by this Easement upon Grantors shall be joint and several.

    7. Successors. The covenants, terms, conditions, and restrictions of this Easement shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns and shall continue as a servitude running in perpetuity with the Property. The terms "Grantors" and "Grantee," wherever used herein, and any pronouns used in place thereof, shall include, respectively, the above-named Grantors and their personal representatives, heirs, successors, and assigns, and the above-named Grantee and its successors and assigns.

    8. Termination of Rights and Obligations. A party's rights and obligations under this Easement terminate upon transfer of the party's interest in the Easement or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer.

    9. Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation.

    10. Counterparts. The parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by both parties; each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling.

TO HAVE AND TO HOLD unto the MEDINA COUNTY LAND CONSERVANCY to the use of the grantee and its successor forever. The covenants agreed to and the terms, conditions, restrictions, and purposes imposed as aforesaid shall not only be binding upon the grantors but also their agents and all other successors to them in interest and shall as a servitude running in perpetuity with the above described land.

And for valuable consideration Grantor XXX and YYY releases to said Grantees all their right and expectancy of Dower in the above-described premises for the purpose of this Grant of Easement.

IN WITNESS WHEREOF, the grantor has hereunto set hands at _______________, Ohio, the __________day of _____________, 19___.

Signed in the presence of: Grantor:

__________________________ ___________________________

XXX

__________________________

__________________________ ___________________________

YYY

__________________________

STATE OF OHIO )

COUNTY OF _____________)

I do hereby certify that XXX and YYY, personally known to me appeared before me in person, and acknowledged that they signed, sealed, and delivered the said instrument as her free and voluntary act, for the uses and purposes therein set forth, this ____day of ________, 19___. _________________________________

Notary Public

A C C E P T A N C E

THE GRANTEE, The MEDINA COUNTY LAND CONSERVANCY does hereby consent to and accept the within Conservation Easement and all obligations imposed thereby this _____day of ____________, 19___.

Signed in the presence of:

________________________ By:________________________________________

President, Medina County Land Conservancy

_________________________

STATE OF OHIO )

COUNTY OF _____________)

I do hereby certify that ___________________, President, of the MEDINA COUNTY LAND CONSERVANCY, an Ohio corporation not-for-profit, personally known to me appeared before me in person, and acknowledged that he/she is duly authorized to execute this document on behalf of the Medina County Land Conservancy, and signed, sealed, and delivered the said instrument as his/her free and voluntary act, for the uses and purposes therein set forth, this ____day of ________, 19___.

_______________________________

Notary Public

Prepared by: HOLLAND & MUIRDEN, Attorneys at Law

1343 Sharon-Copley Road, P.O. Box 345, Sharon Center, OH 44274

55 S. Miller Road, Suite 103, Akron, Ohio 44333

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