Section 35-18-1
Definitions.
As used in this chapter, the following words have the following meanings:
(1) CONSERVATION EASEMENT. A nonpossessory 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, silvicultural, forest, recreational,
or open-space use, protecting natural resources, maintaining or enhancing
air or water quality, or preserving the historical, architectural, archaeological,
paleontological, or cultural aspects of real property.
(2) HOLDER. Either of the following to whom a conservation easement is conveyed:
a. A governmental body empowered to hold an interest in real property under
the laws of this state or the United States.
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, silvicultural, forest, recreational,
or open-space use, protecting natural resources, maintaining or enhancing
air or water quality, or preserving the historical, architectural, archaeological,
paleontological, or cultural aspects of real property.
(3) THIRD-PARTY RIGHT OF ENFORCEMENT. A right expressly provided in a conservation
easement to enforce any of its terms granted to a governmental body, charitable
corporation, charitable association, or charitable trust, which, although
eligible to be a holder, is not a holder.
(Acts 1997, No. 97-715, §1.)
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Section 35-18-2
Easement conveyed, recorded, assigned, etc.; term of easement; interest maintained; condemnation.
(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.
A conservation easement may not be created or expanded under this chapter
by any state, county, or local governmental body through the exercise of
the power of eminent domain.
(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 the acceptance.
(c) Except as provided in subsection (b) of Section 35-18-3, the term of a conservation easement shall be the term stated in the instrument creating
the easement or, if no term is stated, the lesser of 30 years or the life
of the grantor, or upon the sale of the property by the grantor.
(d) An interest in real property in existence at the time a conservation easement
is created, including, but not limited to, any subsurface property interests
or leases and any related rights of owners or leaseholders to remove or
extract minerals or any mortgages, deeds of trust, security interests,
or other liens, shall not be impaired or diminished in any way by a conservation
easement unless all owners of the interests are parties to the conservation
easement or consent to it and the consent is properly recorded. A conservation
easement shall not be construed to impair or diminish in any way interests
in adjacent or surrounding properties.
(e) Nothing in this chapter shall be construed to impair or diminish in any
way the rights of any person, entity, or governmental body authorized by
the laws of this state or under federal law to acquire property interests
through the exercise of eminent domain or condemnation. A conservation
easement may be condemned or appropriated through eminent domain in the
same manner as any other property interest.
(Acts 1997, No. 97-715, §2.)
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Section 35-18-3
Actions affecting a conservation easement.
(a) An action affecting a conservation easement may be brought by any of the
following:
(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 only to the extent provided
in the instrument creating the easement.
(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
applicable to other easements and specifically including the doctrine of
changed conditions.
(Acts 1997, No. 97-715, §3.)
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Section 35-18-4
Validity of easement.
A conservation easement is valid even though any of the following apply:
(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.
(7) There is no privity of estate or of contract.
(Acts 1997, No. 97-715, §4.)
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Section 35-18-5
Creation of instrument; other interests valid.
(a) Any instrument intended to create a conservation easement under this chapter
shall contain an explicit reference to that effect.
(b) 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 any other
law of this state.
(Acts 1997, No. 97-715, §5.)
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Section 35-18-6
Relation to "Forever Wild Amendment."
The provisions of this chapter are intended to be cumulative and supplemental
to the provisions of Amendment No. 543 of the Constitution of Alabama of
1901, commonly known as the "Forever Wild Amendment," and any other provisions
of law, and shall not be construed to repeal any law or part of law except
for those in direct conflict herewith.
(Acts 1997, No. 97-715, §7.)
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