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TITLE 7

Conservation

Natural Resources

CHAPTER 69. CONSERVATION EASEMENTS

As used in this chapter, unless the context otherwise requires:

(1) "Conservation easement" means a non-possessory 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, fish and wildlife habitat, rare species and natural communities 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 of the United States; and

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" shall mean a right provided in a conservation easement to enforce any of its terms and which is granted to a governmental body, charitable corporation, charitable association or charitable trust which, although eligible to be a holder, is not a holder.

70 Del. Laws, c. 552, 1.;

(a) Except as otherwise provided in this chapter, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated or otherwise altered or affected in the same manner as other easements.

(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 that acceptance.

(c) Except as provided in 6903(b) of this title, a conservation easement is unlimited in duration unless the instrument creating it otherwise provides.

(d) An interest in real property in existence at the time a conservation easement is created is not impaired by it, unless the owner of the interest is a party to the conservation easement or consents to it.

70 Del. Laws, c. 552, 1.;

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

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

(2) A holder of the easement;

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

(4) A person authorized by other law.

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

70 Del. Laws, c. 552, 1.;

A conservation easement is 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.

70 Del. Laws, c. 552, 1.;

(a) This chapter applies to any interest created after July 18, 1996, which complies with this chapter, whether or not such interest is designated as a conservation easement, covenant, equitable servitude, restriction, easement or otherwise.

(b) This chapter applies to any interest created before July 18, 1996, if it would have been enforceable had it been created after July 18, 1996, unless such retroactive application contravenes the constitution or laws of this State or the United States.

(c) This chapter does 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.

70 Del. Laws, c. 552, 1.;

NOTICE: The Delaware Code appearing on this site was prepared by the Division of Research of Legislative Council of the General Assembly with the assistance of the Government Information Center, under the supervision of the Delaware Code Revisors and the editorial staff of LexisNexis, includes all acts effective as of January 1, 2010, up to and including 77 Del. Laws, c. 214.

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