Conservation Land Transactions

1
Conservation Land Transactions

• Oahu Land Trust Forum
• January 20, 2007
• Jean Campbell, Esq.
• Melinda Ching, Esq.

2
Preliminary Considerations

• What is the mission of the Land Trust?
• Does this piece of property have the
  characteristics that support our mission?
• Do we have the funds (purchase price, if any,
  plus all costs) to acquire the property?
• Do we have the funds and staffing to
  manage/steward the property for the next few
  years?
• Do we have a plan for management/stewardship
  funding and staffing for the future?

3
Options for Acquiring Interests in Land

• Fee Simple Purchase
• Most expensive, highest level of liability
• Most flexible, fewest limitations for long term
  management and use
• Lease Agreement
• Exclusive use within the terms and conditions of
  the lease
• Less expensive
• Limited in term

4
Options for Acquiring Interests in Land

• Management Agreement
• Memorandum of Understanding
• Partnership Agreement
• These are contracts between the Land Trust and
  the landowner to manage the property in a manner
  that fulfills the mission of the Land Trust.
• Limited commitment reliant upon relationship
  with others limited liability

5
Conservation Easements

• What are they?
• Recorded restrictions of use for the property
  and/or affirmative obligations to manage the
  property in accordance with the Land Trusts
  mission.
• How do they work?
• Property owned in fee by someone else and Land
  Trust hold the easement.
• Land Trust enforces the restrictions and manages
  the obligations.

6
Due Diligence

• Weve located a property, found some money and
• figured out how we want to own/manage it.
• What do we need to do now?

7
Due Diligence

• Title
• Obtain a title report from a reputable title
  company
• Review the report and all the underlying
  documents
• Are there restrictions on use or monetary liens
  which could prevent or restrict the Land Trusts
  planned use of the property?
• Work with your title company to assess the need
  for title insurance
• Zoning
• What are the State Land Use designation and
  County zoning for the property? Are there any
  variances for existing uses of the property?

8
Due Diligence

• Maps
• Possible maps available topo, watershed, flood,
  tax parcels, zoning, geological, soils, Special
  Management Area
• Surveys
• Is there a current land survey available? Some
  large or inaccessible properties may be too
  expensive and/or time consuming to survey

9
Due Diligence

• Structures on the Property
• Are there any existing structures on the
  property? Will they continue to be used or
  removed? Are they of historic importance? Do
  they meet current building or zoning code
  requirements?
• Cultural sites and practices
• Are there any cultural sites which must be
  protected?
• Are cultural practitioners currently using the
  property?
• How do you find out?

10
Due Diligence

• Endangered species
• Consider getting a biological survey done to
  check for endangered species (including those
  currently listed and any which are being
  considered for future listing)
• How will the Endangered Species Act affect the
  Land Trusts proposed use of the property? Even
  protection and conservation may require permits

11
Due Diligence

• Hazardous materials
• Obtain a Phase I report on the property from a
  reputable environmental consultant. Depending on
  the results of the Phase I, a Phase II report may
  also be recommended
• Prior uses
• The Phase I will identify prior uses based on
  research. Any information that can be provided
  to the environmental consultant is helpful, both
  about the property in question and about
  neighboring properties

12
Due Diligence

• Other Items
• Litigation is the property the subject of
  pending or threatened litigation (civil lawsuits,
  condemnation action, governmental liens for
  assessments or taxes)?
• Tenants are there any leases affecting the
  property? Are there any unwritten agreements to
  allow the use of the property? Are there any
  unpermitted users?
• Access Is there practical and legal access to
  the property?

13
Due Diligence

• On going business Does the property come with
  an on going business operation (ranch,
  agricultural use, etc.)? Are there employees?
• Insurance coverage Check with an insurance
  professional about obtaining adequate insurance
  coverage

14
Questions?

• Melinda Ching
• The Nature Conservancy
• mching_at_tnc.org
• Jean Campbell
• Carlsmith Ball LLP
• jcampbell_at_carlsmith.com