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Conservation Easements & Restrictions

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Conservation Easements & Restrictions

Reusable edge-case explainer. Legal information, not legal advice. Last verified: 2026-06-02.

What this edge case is

A conservation easement (in some states a “conservation restriction”) is a recorded, nonpossessory interest in land held by a qualified government body or charitable land trust that permanently limits how the burdened (“servient”) parcel may be developed or used, in order to protect open space, farmland, wildlife habitat, scenic, or historic values. Most states authorize them under a version of the Uniform Conservation Easement Act (UCEA, 1981), and most such easements are perpetual by default and by federal tax design.

The edge case for a foreclosure buyer is survival: when a parcel encumbered by a recorded conservation easement (or an ordinary recorded deed restriction) is sold for delinquent taxes or foreclosed for a mortgage, does the restriction bind the purchaser, or is it wiped off the title the way junior liens often are? The answer turns on two distinct timing questions:

  1. Did the restriction predate the lien being foreclosed? A recorded easement is an interest in the land, not a lien on it. A foreclosure generally extinguishes only interests that are junior to the foreclosed lien; interests senior to it ordinarily survive.
  2. Is it a tax foreclosure or a mortgage foreclosure? These run on different priority rules. A property-tax lien is typically superior to everything, which would seem to threaten even a senior easement — but a strong line of authority and several statutes hold that an appurtenant easement is not extinguished by a tax sale because the easement was never part of what the taxing authority assessed and sold.

The practical upshot: a conservation easement very often rides through a foreclosure and binds the winning bidder, who may have just bought land they cannot develop. Misreading this is a classic way to overpay at auction.

When it arises

Tax foreclosure / tax-deed sale. The buyer at a treasurer-sale or tax-deed auction takes title to a parcel that a title search reveals is subject to a recorded conservation easement. The buyer assumes the tax deed “wipes the slate clean.” For appurtenant easements and most recorded restrictions, the prevailing rule is the opposite — see Engel and Alvin below, plus statutes in states like maine that make conservation easements expressly valid despite tax foreclosure.

Mortgage foreclosure. A bank forecloses a deed of trust or mortgage. Whether the conservation easement survives depends on recording priority between the mortgage and the easement:

  • Easement recorded before the mortgage → the mortgage is junior to the easement; foreclosure of the mortgage does not extinguish the senior easement, and the buyer takes subject to it.
  • Easement recorded after the mortgage, with no subordination → the easement is junior; a completed foreclosure of the senior mortgage can extinguish it. This is precisely the risk the federal tax rules guard against by requiring mortgage subordination before a deductible donation (see Mitchell, below).

Redemption / post-sale. Even where a sale is later unwound through right-of-redemption, the easement’s existence affects valuation and the surplus calculation, because restricted land is worth less than its unencumbered equivalent.

The default rule: conservation easements are perpetual and do not impair prior interests

Under the UCEA pattern, a conservation easement is perpetual unless its terms provide otherwise, and — critically for foreclosure — it cannot impair an interest in the land that already existed when the easement was created. Virginia’s enacted UCEA states both rules verbatim:

“A conservation easement shall be perpetual in duration unless the instrument creating it otherwise provides a specific time.”

“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 in writing.”

Source: Va. Code § 10.1-1010 (retrieved 2026-06-02). This is the enacted analogue of UCEA § 2(c) (duration) and § 2(b) (prior interests). The second sentence is the doctrinal hinge: a prior mortgagee’s foreclosure right is not impaired by a later easement — which is exactly why a later, un-subordinated easement is vulnerable in a mortgage foreclosure, while a senior easement survives.

needs_verification: A clean, retrievable copy of the official Uniform Law Commission UCEA § 1–§ 2 verbatim text (the model act, as distinct from any one state’s enactment) was not retrieved; the model-act language is represented here through Virginia’s enacted version. The substance (perpetual default; prior interests not impaired) is corroborated but the exact ULC section wording is not directly quoted from a retrieved ULC source.

Tax sales: the appurtenant-easement survival rule

The leading common-law rule is that an easement appurtenant is not extinguished by a tax sale of the servient estate, because the easement was carved out of the servient lot and is taxed (if at all) as part of the dominant estate — so the tax assessment and the tax deed never reached it.

  • Engel v. Catucci, 197 F.2d 597 (D.C. Cir. 1952). A District of Columbia tax deed to a lot burdened by a recorded appurtenant easement of passageway did not extinguish the easement. The court reasoned that “an easement which lies upon one lot but is appurtenant to another lot is really part of the latter. It is carved out of the former,” so when the servient lot is sold for taxes, “the lot less the easement should pass.” Source: Engel v. Catucci, 197 F.2d 597 (D.C. Cir. 1952) (retrieved 2026-06-02).

  • Alvin v. Johnson, 241 Minn. 257, 63 N.W.2d 22 (1954). The Minnesota Supreme Court held that an easement appurtenant (there, a prescriptive roadway) was not extinguished by the State’s tax forfeiture and resulting tax deed of the servient land, applying “the weight of authority … that an easement appurtenant is not extinguished by a sale and conveyance of the land subject to it for nonpayment of a tax assessed against such land.” Source: Alvin v. Johnson, 241 Minn. 257, 63 N.W.2d 22 (1954) (retrieved 2026-06-02).

The rationale has a due-process dimension: the property assessed, sold, and conveyed at a tax sale must be the same property; extinguishing an interest that was never assessed (the dominant estate’s easement) would take that interest without the notice the easement holder is due. This is the same Fifth/Fourteenth-Amendment logic that animates tyler-v-hennepin-county in the surplus context — you cannot use a tax sale to sweep in property the tax never reached.

Scope caution. The survival rule is most strongly settled for appurtenant easements and recorded restrictive covenants/equitable servitudes. A conservation easement is statutorily a property interest “whether appurtenant or in gross” (e.g., Va. Code § 10.1-1009), and several states make the survival result explicit by statute (next subsection). Where neither a statute nor the appurtenant rationale applies, an in-gross interest’s survival of a tax sale is less uniformly settled and should be checked against the specific jurisdiction page.

Tax sales: express statutory survival

Some states remove the doubt by statute. Maine declares a conservation easement valid even though title has been taken through tax foreclosure:

“A conservation easement is valid even though: … A lien has been established for property tax delinquency under Title 36, section 552, or title to the real property subject to the conservation easement has been acquired by procedures for enforcement and foreclosure of delinquent taxes under Title 36, chapter 105, subchapter 9 …”

Source: 33 M.R.S. § 479 (retrieved 2026-06-02). The same section preserves the easement against merger if the holder acquires the fee, subject to replacement safeguards (§ 479(10)).

Mortgage foreclosure: subordination and the federal perpetuity rules

For a donated conservation easement to be deductible, federal tax law forces the easement to be senior — or at least protected — against any pre-existing mortgage. Treasury regulation 26 C.F.R. § 1.170A-14(g)(2) provides:

“In the case of conservation contributions made after February 13, 1986, no deduction will be permitted under this section for an interest in property which is subject to a mortgage unless the mortgagee subordinates its rights in the property to the right of the qualified organization to enforce the conservation purposes of the gift in perpetuity.”

Source: 26 C.F.R. § 1.170A-14(g)(2) (GPO, retrieved 2026-06-02). The reason is exactly the foreclosure risk this page describes: an un-subordinated prior mortgage could be foreclosed and wipe out the easement, defeating perpetuity.

The courts read this strictly. In Mitchell v. Commissioner, 138 T.C. 324 (2012), aff’d, 775 F.3d 1243 (10th Cir. 2015), the donor subordinated the deed of trust roughly two years after granting the easement; the Tax Court and Tenth Circuit held the deduction was barred because, at the time of the gift, the easement was not protected in perpetuity — “because a conservation easement subject to a prior mortgage obligation is at risk of extinguishment upon foreclosure,” subordination must be in place at or before the donation. Sources: Mitchell v. Commissioner, 138 T.C. 324 (2012); Mitchell v. Commissioner, 775 F.3d 1243 (10th Cir. 2015) (both retrieved 2026-06-02).

The companion regulation, 26 C.F.R. § 1.170A-14(g)(6) (“Extinguishment”), provides that a perpetual conservation restriction may be extinguished only “by judicial proceeding,” and that the donee organization holds a vested property right entitling it to a proportionate share of any post-extinguishment sale proceeds:

“(6) Extinguishment. (i) In general. … a deduction will nonetheless be allowed if … the restrictions are extinguished by judicial proceeding and all of the donee’s proceeds … from a subsequent sale or exchange of the property are used by the donee organization in a manner consistent with the conservation purposes of the original contribution.”

Source: 26 C.F.R. § 1.170A-14(g)(6) (GPO, retrieved 2026-06-02). The “judicial-proceeding-only” extinguishment expectation reinforces that a foreclosure buyer should not assume an auction silently terminates a donated easement.

needs_verification: The validity of the § 1.170A-14(g)(6)(ii) proceeds formula has itself been the subject of recent litigation and Tax Court splits (e.g., challenges to the “improvements” carve-out). The deductibility mechanics are summarized here for the foreclosure-survival point only; the current validity of every clause of the proceeds regulation is not independently verified on this page.

State-by-state variation

The federal regulations above govern deductibility, not survival of the servitude against a foreclosure buyer; survival is a matter of state property law, which varies. Statements below summarize mechanics; each underlying rule carries its own primary citation on the linked jurisdiction page.

JurisdictionVariationCitation
UCEA states (e.g., virginia, maine, texas, minnesota, arizona, oregon, wisconsin)Conservation easement is perpetual by default and does not impair interests existing when it was created; a prior mortgagee keeps its foreclosure priority, a later un-subordinated easement is juniorVa. Code § 10.1-1010
maineConservation easement expressly valid despite property-tax lien and tax-foreclosure acquisition; survives merger subject to replacement safeguards33 M.R.S. § 479
district-of-columbiaAppurtenant easement is not extinguished by a tax deed of the servient lotEngel v. Catucci, 197 F.2d 597 (D.C. Cir. 1952)
minnesotaAppurtenant easement survives tax forfeiture / tax deed of the servient estateAlvin v. Johnson, 241 Minn. 257, 63 N.W.2d 22 (1954)
Non-UCEA / older-statute states (e.g., massachusetts conservation restrictions under M.G.L. c. 184 §§ 31–33)Authorized under a distinct restriction statute rather than the UCEA; survival of tax sale generally follows the appurtenant/recorded-restriction rule but the exact tax-foreclosure treatment must be checked locallyneeds_verification — confirm against massachusetts page

needs_verification: A 50-jurisdiction survival matrix (does an in-gross conservation easement survive a tax sale in each state) is not yet built. The appurtenant rule (Engel, Alvin) and the express statutes (maine) are verified; per-state in-gross tax-sale treatment is flagged for the individual jurisdiction pages.

Operator due diligence

Specific steps to identify and price this risk before bidding:

  1. Pull a full chain of title, not just a lien list. Conservation easements and deed restrictions are recorded interests, not liens, and may not surface on a tax-lien report. Order a title commitment and read Schedule B-II exceptions for any “conservation easement,” “conservation restriction,” “deed of conservation easement,” “open-space,” “agricultural preservation,” or “historic preservation” instrument.
  2. Date the easement against the lien you are foreclosing through. Record the easement’s recording date and compare it to the mortgage/deed of trust you are buying behind. Senior easement → survives. Junior, un-subordinated easement in a mortgage foreclosure → may be extinguished (this is the only common scenario where you can clear it).
  3. For a tax sale, assume survival. Under Engel, Alvin, and statutes like maine’s § 479, do not assume the tax deed clears a conservation easement. Price the property as permanently restricted unless you have a jurisdiction-specific statute or case to the contrary on the state page.
  4. Read the easement’s use restrictions and the baseline documentation. Obtain the recorded deed of easement; identify prohibited acts (subdivision, new structures, mineral extraction, impervious surface caps), affirmative obligations, the holder’s inspection/access rights, and any amendment or “discretionary consent” provisions. These define what you can ever do with the land.
  5. Check for a subordination agreement and an extinguishment clause. A recorded subordination tells you the easement was made senior to the mortgage (it will survive the mortgage foreclosure). A § 1.170A-14(g)(6) judicial-extinguishment / proceeds clause tells you the holder expects a court process and a cut of any proceeds before the restriction ever lifts.
  6. Identify and contact the holder. Land trusts and agencies actively monitor and enforce; a violation can draw injunctive relief and fees. Confirm the holder still exists and whether the easement has been assigned.
  7. Confirm the tax-assessment basis. Restricted land is often assessed at a reduced (current-use / open-space) value. Verify whether back taxes, rollback taxes, or a use-classification change will be triggered by the sale.
  8. Watch for overlapping programs. USDA NRCS wetland/grassland reserve easements, agricultural conservation easements, and historic facade easements carry their own federal terms and may not be extinguishable through a routine sale at all.

▸ For Investors / Operators. Conservation easements are the rare encumbrance that frequently survives a tax deed — Engel and Alvin treat the servitude as carved out of what the tax ever assessed, and statutes like maine’s § 479 say so outright. Before you bid, date the easement against the lien you are foreclosing through (senior easement = survives; junior un-subordinated easement in a mortgage foreclosure = your only real shot at clearing it) and price the parcel as permanently restricted by default.

▸ For Former Owners. A conservation easement on land you are losing does not by itself extinguish your right to any surplus the sale generates — and because restricted land sells for less, the surplus math and deadlines still matter. If your property sold for more than the tax or mortgage debt, the excess may be claimable.

If it happens

You bought restricted land you thought was clear.

  • Exposure: You take title subject to the easement; the holder may enforce prohibited-use restrictions against you, including injunctive relief and attorneys’ fees. You generally cannot develop in violation, and a tax deed does not give you standing to ignore the servitude.
  • Possible remedies: (a) Challenge whether the specific interest was truly senior / appurtenant / properly recorded under the state’s rule; (b) if you bought at a tax sale in reliance on a defective title report, pursue the title insurer (if Schedule B did not except the easement) or a refund/set -aside if the jurisdiction allows; (c) negotiate an amendment with the holder (rare, and constrained by charitable-trust and § 1.170A-14 perpetuity limits); (d) where the law permits, seek judicial extinguishment under the § 1.170A-14(g)(6) “impossible or impractical” standard — a high bar requiring a court proceeding and a proceeds split with the holder.

You foreclosed a senior mortgage and want to clear a junior easement.

  • Path: Joining the easement holder as a party and completing a foreclosure of the senior mortgage can extinguish a junior, un-subordinated easement under ordinary priority rules. But verify there is no recorded subordination that flipped the priority, and confirm the holder received the notice required for its interest — an omitted necessary party may survive the foreclosure.

Surplus interaction. Restricted land typically yields a lower sale price, which compresses any surplus-funds. Where a tyler-v-hennepin-county surplus claim exists, the easement is relevant only to valuation, not to the former owner’s entitlement to the excess over the debt.

▸ For Investors / Operators. If you are already holding restricted land, your levers are narrow: title-insurance recovery, a negotiated amendment with the holder, or a court extinguishment on the demanding “impossible or impractical” standard with a proceeds split. Model the land at its restricted value and plan exit accordingly.

▸ For Former Owners. Even if a conservation easement reduced your property’s auction price, any surplus over the debt may still belong to you under tyler-v-hennepin-county. Deadlines to claim are short and jurisdiction-specific.

right-of-redemption, surplus-funds, third-party-recovery-rules, due-process-notice, treasurer-sale, sheriff-sale, tyler-v-hennepin-county, jones-v-flowers, mennonite-v-adams, mullane-v-central-hanover, virginia, maine, minnesota, texas, massachusetts, district-of-columbia

Sources

Legal information, not legal advice. This page summarizes federal tax regulations, the Uniform Conservation Easement Act pattern, and state property law as of the last_verified date, and does not account for every state’s enactment, local recording rule, or subsequent development. Whether a particular conservation easement or deed restriction survives a particular tax or mortgage foreclosure is fact-specific and jurisdiction-specific. Consult a licensed attorney before acting.

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