Conservation Leases

Conservation leases are one type of formal conservation agreement. This toolkit includes a wide variety of authorization mechanisms within leases, including licenses, permits, assents, easements, contracts, and concessions, among others. While the titles of these authorization mechanisms vary widely along with the implied meaning of the titles, the explicit language of the documents determine what rights and responsibilities are actually being transferred from one party to another.

Proprietary Nature

Image courtesy Audubon California

It is important to qualify the large group of authorization mechanisms within the lease category as those mechanisms that are proprietary in nature. In other words, for the purposes of this toolkit, a lease is a mechanism that transfers some form of less-than fee-simple property right or responsibility. This is in contrast to:

• Fee-simple ownership agreements in which all (or nearly all) property rights are transferred.
• Mechanisms in which no property rights are transferred. Many forms of authorization carry with them explicit legal connotations, which may vary from country to country, that property rights are not transferred from one party to another. For example, licenses normally do not convey property rights. Also, regulatory mechanisms are issued by controlling (usually government) authorities that possess police powers regardless of ownership. Regulatory mechanisms may have similar names (i.e., permit) applied to them, which reinforces the importance of assessing the explicit language within the documents.

Parties

Private entities frequently enter into leases with public entities to acquire rights and responsibilities over public lands and resources within ocean and coastal environments. However, private entities may also enter into lease agreements with private individuals and private companies as well. These private parties may own lands and resources themselves or may have entered into lease agreements with public entities.

Enforcement Mechanisms

Lease agreements are legally binding documents which can be upheld in civil court. In some cases, lease conditions may be enforceable through police powers as well. However, there are normally less litigious enforcement mechanisms in leases such as lease payments and lease cancellation clauses that provide incentive-based enforcement of contract terms and conditions.

Terms

Lease terms (or the duration of leases) can vary widely from less than a year to perpetuity. However, traditional leases are normally entered into for a period of time less than perpetuity. When leases are entered into with government entities, the maximum and minimum lease terms are often defined in law. On occasion, despite laws to the contrary (or in the absence of laws), leases issued by government entities in the past, when government proprietary management programs were less evolved, were for perpetuity. Leases between two private parties can usually be as long or short as the two parties desire. This is in contrast to traditional conservation easements (as applied to both terrestrial and aquatic areas) between two private parties, which have normally been for perpetuity.