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Chapter 14A. NGO CONSERVATION COVENANTS (NEW)

WHAT IS IT? An NGO conservation covenant 14A-1 is a voluntary, written agreement between a landowner and a conservation group (a non-governmental organization, or "NGO") in which the owner of the land promises to protect the land in certain ways. The covenant is filed in the Land Title Office. It lasts forever, and binds future owners of the land; not just the current landowner. It can cover all, or just a portion, of the landowner's property. (For a WCELRF publication focussing specifically on NGO conservant covenants, see Leaving a Living Legacy: Using Conservation Covenants in BC.)

EXAMPLE. The Pender Islands Conservancy Association and the Islands Trust Fund Board purchased the Medicine Beach marsh and surrounding forest and bluff. A narrow strip of additional land contains the tidal creek which is the inflow-outflow channel for the marsh. This channel is essential for the ecological health of the marsh. The owner of the channel was already conservation-minded, but chose to grant a conservation covenant to the Conservancy Association to ensure long-term protection of the marsh. (For more examples, with pictures, see Appendix I, Example Covenants, Leaving a Living Legacy: Using Conservation Covenants in BC.)

POSSIBLE APPLICATIONS. An NGO conservation covenant is appropriate where

• the owner of the land is willing to cooperate,
• there is a conservation organization willing to take responsibility for the covenant,
• the owner does not want to transfer complete title (the "fee simple") to the land to the conservation organization, for whatever reason,
• the conservation objectives are capable of being defined in terms of specific things that are to be done or not to be done, and
• the conservation objectives are long-term.

Conservation covenants held by conservation organizations are useful in a wide variety of situations:

• protecting ecologically valuable features of the land,
• providing a buffer zone adjoining a park or other protected area,
• requiring agricultural land to be used for farming without damaging important waterfowl habitat,
• limiting private forest land to ecologically sustainable forestry,
• requiring specific management or development practices that protect a variety of values relating to the land, including natural, historical, heritage, cultural, scientific, architectural, environmental, wildlife or plant life values,
• providing a buffer zone to protect riparian habitat from logging on private land, and
• protecting a rails-to-trails or other linear conservation project.

LEGAL BASIS. An NGO conservation covenant is created under section 215(1.2) of the Land Title Act. It has a number of legal features:

• It can contain both positive and negative promises (e.g., to do something, or not to do something).
• It is a deed which is binding on any future owner of the land, as mentioned above.
• It binds the owner personally, but only as long as that person owns the land. When the owner transfers the land to someone else, the new owner becomes bound and the original owner is no longer personally bound by the covenant.
• An NGO conservation covenant can modified by an agreement between the landowner and the conservation organization. In unusual circumstances, a court can modify the covenant. Also, the conservation organization holding the covenant can choose to discharge the covenant.
• In order to be eligible to hold an NGO conservation covenant, an organization must request and be granted designation by the Ministry of Environment, Lands and Parks.

HOW IS IT CREATED? An NGO conservation covenant is created by a written document that describes the land, the owner and the conservation organization that will hold the covenant. Naturally, the document also sets out all the terms and conditions by which the landowner promises to conserve the land.

HOW LONG CAN IT LAST? An NGO conservation covenant can last forever. As mentioned above, it can be discharged by the conservation organization that holds it, or, in unusual circumstances, by a court. An NGO conservation covenant could also specify that it is to last for only a certain number of years.

WHO MONITORS AND MAINTAINS THE LAND? The landowner maintains the land, and the conservation organization monitors whether the covenant is being complied with.

HOW CAN THE LAND BE PROTECTED OVER TIME? The conservation organization that holds the covenant can go to court to enforce the covenant. Often, the covenant itself will specify certain remedies, such as payment of a sum of money, that will be available if the landowner violates the covenant. Normally, conservation organizations holding conservation covenants try to maintain regular contact with the landowner. This helps to prevent breaches before they occur.

HOW IS IT TERMINATED? As mentioned above, an NGO conservation covenant can be discharged by the organization that holds it, or, in unusual circumstances, by a court. Also, if the organization that holds the covenant ceases to exist and has not made any arrangements for transferring the convenant, then the covenant will cease to be enforceable.

Taxation

If placing an NGO conservation covenant on a property reduces the market value of the property, then the assessed value of the property will go down and the amount of property tax payable will be reduced. The property transfer tax does not apply to the making of an NGO conservation covenant. However, there are some fairly complicated income tax consequences of an NGO conservation. For more information, see Chapter 6, Tax issues, Leaving a Living Legacy: Using Conservation Covenants in BC.)

Advantages

for the conservation organization

1. An NGO conservation covenant can be tailored to protect the land in the most appropriate ways.
2. An NGO conservation covenant does not require a dominant tenement and a servient tenement.
3. An NGO conservation covenant can contain obligations on the landowner to do things, or not do things, in relation to the conservation of the land.
4. Protection of the land is not dependent on the political views of future governments.

for the landowner

1. Landowners can balance the conservation interests of the land, on the one hand, and the economic value of the land, on the other. For example, landowners might want to include a covenant prohibiting subdivision of land, but not prohibiting the building of one house, so as to still be able to sell the land as recreational property.
2. The landowner can ensure that conservation objectives are maintained in the future after the landowner transfers the property or dies, without relinquishing control over other aspects of managing the land.
3. There may be a property tax advantage to making an NGO conservation covenant.

Disadvantages

for the conservation organization

1. Conservation organizations must realize that monitoring and possibly enforcing a conservation covenant takes commitment and resources.

for the landowner

1. The landowner should be aware that the existence of the covenant may reduce the market value of the property.
2. The landowner relies on the conservation organization to honour the landowner's intentions (as specified in the covenant) in terms of monitoring and enforcing the covenant in the future (e.g., regarding subsequent owners).

Info for Conservation WCEL Home Page

14A-1. The NGO conservation covenant is a new legal tool, adopted by the B.C. legislature in 1994 following the recommendations in Using Conservation Covenants to Preserve Private Land in British Columbia and in Chapter 23 of the original version of Here Today, Here Tomorrow.