Cultural Heritage Conservation Easements: The Problem of Using Property Law Tools for Heritage Protection

22 Pages Posted: 7 Jul 2015 Last revised: 1 Dec 2015

See all articles by Jessica Owley

Jessica Owley

University at Buffalo Law School; Universidad Pontificia Comillas (ICADE)

Date Written: July 6, 2015

Abstract

Conservation easements are quickly becoming a favored tool for protection of cultural heritage. Perpetual encumbrances on the use of private land, most cultural heritage conservation easements are held by private conservation organizations known as land trusts. With minimal public oversight, land trusts decide which lands to protect in perpetuity and what the rules regarding use of those lands should be. A variety of concerns arise when protection of cultural heritage resides with private organizations. First, as governments abdicate cultural heritage protection to private organizations, the public’s role in site protection shifts. When private organizations and landowners negotiate which properties to protect and how to protect them, some culturally important sites go unprotected. Privatizing protection of cultural sites may reduce the ability of some members of the public to become involved in the decision of what to protect as well as hamper public oversight and enforcement of land-use restrictions. It may even reduce overall protection as public entities remove themselves from the cultural heritage protection game, ceding the territory to land trusts. Second, private perpetual restrictions problematize the balance between intergenerational rights and present responsibilities. Reverence of past cultural events and properties may hamper future growth as users of conservation easements restrict properties in perpetuity without enabling communities to revisit or modify the restrictions. Third, conservation easements may be protecting sites that were not in danger of exploitation. In such cases, conservation easements subsidize landowners with questionable public benefits. Finally, using conservation easements to protect sacred sites commoditizes cultural heritage. Paying people to protect cultural heritage could degrade cultural heritage or civic responsibility.

Keywords: conservation easement, privitization, cultural heritage, perpetuity, land trust

Suggested Citation

Owley, Jessica, Cultural Heritage Conservation Easements: The Problem of Using Property Law Tools for Heritage Protection (July 6, 2015). Land Use Policy 2015, Forthcoming; SUNY Buffalo Legal Studies Research Paper No. 2015-032. Available at SSRN: https://ssrn.com/abstract=2243129

Jessica Owley (Contact Author)

University at Buffalo Law School ( email )

School of Law
528 O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-8182 (Phone)
716-645-2064 (Fax)

Universidad Pontificia Comillas (ICADE) ( email )

Alberto Aguilera 23
Madrid, Madrid 28015
Spain

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