Title Restrictions

Structuring Effective Title Restrictions

It is important that the restrictive mechanisms be capable but not excessive. The advantage of conservation easement-style tools is that they restrict specifically those land use activities which imperil the conservation values of the land, but allow other land uses to persist, thereby preserving the base economic viability of the conservation area parcel.

The complexity of the tool reflects the complexity of on-going monitoring and legal ‘brittleness.’ For example, if a simple restriction against sub-division of the TDC Conservation Area parcel will accomplish 80% of the conservation goal, program designers should ask if greater restrictions are required. The simpler restrictions are less costly to monitor, less subject to infraction, and therefore less likely to be legally challenged.

In the case of conservation easements, TDC program designers must also identify who is going to hold that title restriction on behalf of the program: the municipality, provincial government, or a third party conservation organization (land trust). Many American programs see the local government holding the easement, but third-party examples exist as well. The key considerations are whether the community will trust the municipality to hold the easement, whether provincial agencies are willing and trusted, whether there is a local land trust willing and able, whether their mandate matches the program goals, and if the dynamics of perpetual, tri-party agreements can be managed.