Attorney General Opinion:[br]A Conservation Easement Is Not A Subdivision And Not Subject To The Requirements Of The Subdivision Map Act

A California state senator asked the Attorney General for an opinion on whether the requirements of the Subdivision Map Act (“Act”) apply to a corporation’s grant of a conservation easement, under which the corporation will keep ownership and possession of the property.

In Opinion 06-801, the Attorney General opined that such an easement is not a subdivision, and therefore not subject to the requirements of the Act.

Attorney General Opinion

The Attorney General reviewed the California law that defines a conservation easement and the definition of a subdivision for the purposes of the Act, and concluded that an easement is not a subdivision.

A conservation easement is defined in Civil Code Section 815.1 as a “restriction, covenant, or condition” agreed to by the owner of a parcel of land to preserve its natural, historical, or scenic values. Typically, the Attorney General noted, it specifically precludes certain uses that conflict with the easement’s goal. As incentive for granting the easement, the property owner is awarded “mitigation credits,” which it may sell to other property owners that offset environmental impacts from uses of other properties. A subdivision is defined in the Act as “the division, by any subdivider, of any unit or units of improved or unimproved land” for the purpose of “sale, lease or financing, whether immediate or future.”

A conservation easement is not a subdivision, the Attorney General said, because it does not constitute a division of the land. The owner has neither conveyed nor expressed any intent to convey the designated land as a separate unit. Moreover, the purpose of the easement is not to effect a “sale, lease or financing” of the land.

The Act’s separate provisions dealing with “environmental subdivisions” do not apply, the Attorney General said, because environmental subdivisions, while similar in purpose to conservation easements, still result in the creation of new parcels of property. Neither does the acceptance of mitigation credits by the landowner constitute a subdivision, because no division of land results from the receipt of those credits, the Attorney General opined.

As a result, the Attorney General concluded the requirements of the Act are not applicable to a corporation’s grant of a conservation easement under which the corporation maintains ownership and possession of the property subject to the easement.