SAMPLE DEED OF EASEMENT
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This document
contains language for both the FAMILY
and the UNRESTRICTED LOT
options. The landowner must choose one
of the options at the time of easement application.
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Please note that
counties can require additional language as a condition for county approval of
easement applications to the Foundation.
UNRESTRICTED LOT\FAMILY
Rev.
NOTICE TO TITLE EXAMINERS: THIS DEED OF
EASEMENT CONTAINS COVENANTS THAT INCLUDE RESTRICTIONS ON THE USE, SUBDIVISION
AND OFF-CONVEYANCE OF LAND.
File #: **-**-**
THIS
DEED OF EASEMENT made this ______day of ______________, 200__, by and between
********, party of the first part, Grantor, ***** and **********, Trustees and
***********, Beneficiary parties of the second part, and the STATE OF MARYLAND,
to the use of the Department of Agriculture on behalf of the Maryland
Agricultural Land Preservation Foundation, party of the third part, Grantee,
and containing covenants intended to be real covenants running with the land,
WITNESSETH:
WHEREAS,
Subtitle 5 of Title 2 of the Agriculture Article, Annotated Code of Maryland,
created the Maryland Agricultural Land Preservation Foundation for the purpose
of preserving agricultural land and woodland; and
WHEREAS,
by authority of Agriculture Article, Section 2-504(3), Annotated Code of
Maryland, the Grantee may purchase agricultural preservation easements to
restrict land to agricultural use; and
WHEREAS,
the Grantor owns the hereinafter described tract(s) or parcel(s) of land
(hereinafter referred to as "the land") located in an agricultural
preservation district established pursuant to Agriculture Article, Section
2-509, Annotated Code of Maryland, and desires to sell an agricultural
preservation easement to the Grantee to restrict the land to agricultural use.
NOW,
THEREFORE, in consideration of the sum of ************ Dollars ($**********)
and other valuable consideration, the receipt of which is hereby acknowledged,
the Grantor for the Grantor, the successors, personal representatives and
assigns of the Grantor, does grant and convey, to the State of Maryland, for
the use of the Grantee, its successors and assigns, an agricultural
preservation easement in, on and over the hereinafter described tract(s) or
parcel(s) of land, subject to the covenants, conditions, limitations and
restrictions hereinafter set forth, so as to constitute an equitable servitude
thereon, that is to say:
All
those certain tract(s) or parcel(s) of land, situate,
lying and being in the ******* Election District of ******** County,
BEGINNING *********
BEING *************
AND
the Grantor covenants for and on behalf of Grantor, the personal
representatives, successors and assigns of the Grantor, with the Grantee, its
successors and assigns, to do and refrain from doing upon the above described
land all and any of the various acts set forth, it being the intention of the
parties that the said land shall be preserved solely for agricultural use in
accordance with the provisions of the Agriculture Article, Title 2, Subtitle 5,
Annotated Code of Maryland, and that the covenants, conditions, limitations and
restrictions hereinafter set forth, are intended to limit the use of the land
and are to be deemed and construed as real covenants running with the land.
I. PURPOSE
It
is the purpose of this Easement to enable the land to remain in agricultural
use for the production of food and fiber by preserving and protecting in
perpetuity its agricultural value, character, use and utility, and to prevent
any use or condition of the land that would impair or interfere with its
agricultural value, character, use or utility.
To the extent that the preservation of open space of the land is
consistent with such use, it is within the purpose of this easement to protect
that open space.
II. COVENANTS, CONDITIONS, LIMITATIONS AND
RESTRICTIONS
Subject
to the Reservations hereinafter contained, the Grantor for the Grantor, the
heirs, personal representatives, successors and assigns of the Grantor,
covenants and agrees as follows:
A. Agricultural Use
1. Except as otherwise provided in this instrument, the land is
restricted solely to agricultural use and may not be used for any commercial,
industrial, or residential use or purpose, or for any use that temporarily or
permanently impairs or interferes with the land's agricultural value,
character, use or utility, unless prior approval is obtained
from the Grantee.
2. No rights-of-way, easements, oil, gas or mineral leases, or
other similar servitude may be conveyed, or permitted to be established on the
land for any commercial, industrial or residential use, without the Grantee's
express written permission.
3. Unless written approval is first obtained
from the Grantee, no easement or other restriction may be granted to any person
or government agency in the land subject to this deed of easement.
4. No signs, billboards, or outdoor advertising displays may be
erected, displayed, placed or maintained on the land; provided, however, the
Grantor reserves the right to erect signs not exceeding 4 feet x 4 feet for
each of the following purposes:
a. to state the name of the land and the name
and address of the occupant;
b. to advertise any home or ancillary
occupations consistent with the purposes of this easement subject to the
approval of the Grantee; and
c. to advertise the land's sale or rental, to
forbid trespassing or hunting, to identify the land's protected status under
this Deed of Easement, or to support a political candidate, all as further
regulated by local laws.
5. No ashes, sawdust, bark, trash, rubbish or any other material
may be dumped on the land, except that used in normal agricultural practices.
6. The land shall be managed in accordance with sound agricultural
soil and water conservation practices so as to promote the agricultural
capability of the land; also, woodland shall be managed in accordance with
sound forestry practices; provided, however, the Grantor reserves the right to
selectively cut or clear cut from time to time trees which will not alter the
agricultural character of the land or diminish its productive capability.
7. The Grantor shall implement all soil conservation and water
quality practices that are contained within a soil conservation plan approved
by the local soil conservation district, made or revised within the last ten
years of the date of the application to sell an easement, which lists all soil
conservation and water quality problem areas on the land. The plan shall be implemented according to
the schedule of implementation contained within the plan which exists at the
time of easement settlement. Revisions
to the schedule of implementation may be made as approved by the Board of
Supervisors of the local soil conservation district,
however, the plan shall be fully implemented within ten years of the easement
settlement date. Exceptions may be
considered by the Grantee on a case by case basis.
8. The Grantor shall implement a Forest Stewardship Plan in
accordance with the Management Practice Schedule of the Plan, if the land
contains 25 acres or more of contiguous forest.
9. During regular business hours, the Grantee or its authorized
representative will have the right to enter on the land from time to time for
the sole purpose of inspection and enforcement of the easement, covenants,
conditions, limitations and restrictions herein contained, provided, however,
that the Grantee will have no right to inspect the interior of any structures
on the land.
10. Upon sale or transfer of any interest in the land, including,
but not limited to a leasehold interest, life estate, term of years, or
remainder interest, the Grantor, his
personal representatives, successors and assigns shall notify the Grantee in
writing of the name and address of the party receiving the interest in the
land.
B. No
Subdivision or Development Rights Transfer
1. The division, partition or subdivision ("division") of
the land for any purpose, including off conveyance and boundary line
adjustment, is prohibited, unless written approval has first been obtained from
the Grantee. Notwithstanding the fact
that the land subject to this Deed of Easement may comprise existing subdivided
parts (whether separately described parcels or government assigned tax parcels
or accounts), it is the intent of the Grantor and the Grantee that the total of
the parts remains in common ownership.
To that end, the Grantor may not sell, transfer, off convey, devise, give,
bequeath, donate, or otherwise divide, any existing or future subdivided part
or parts separately from the total of the parts, whether voluntarily,
involuntarily, or by reason of foreclosure or bankruptcy. However, the Grantee may approve a division
of the total of the parts of the land and separate ownership of a part or parts
of the land for reasons which the Grantee, in its sole discretion, deems
sufficiently extraordinary to justify an exception to the prohibition against
division. For purposes of this
subparagraph, the terms, "divide" and "division" shall
include the lease of any part or parts less than 100% of the total parts of the
land for a term in excess of twenty (20) years.
2. Except as provided in Section IV herein, all development rights
associated with the land are hereby extinguished. No development rights from the land may be
transferred to another area, or to another person, or to a political
subdivision, notwithstanding any prior agreement to the contrary; nor may the
land be used for the purpose of calculating permissible lot yield of any other
property. In addition, Grantor agrees
that it shall not be permitted to develop the within described property based
on any existing, retained, or after acquired Development Rights, except for
that which the Grantee has given approval in accordance with Section IV herein.
III. RESERVATIONS IN THE GRANTOR
Provided
that the Purpose of the Easement as specified under Section I is fulfilled, the
Grantor reserves the right to use the land for any farm use, and to carry on
all normal farming practices, including the operation at any time of any
machinery used in farm production or the primary processing of any agricultural
products; the right to conduct upon the land any agricultural operation which
is in accordance with good husbandry practices and which does not cause bodily
injury or directly endanger human health, including any operation directly
relating to the processing, storage, or sale of farm, agricultural or woodland
products produced on the land.
IV.
It
is the purpose of this section to limit development rights to maximize the
preservation of the agricultural land.
A. Family
The
Grantee, on written application from the Grantor, shall release free of
easement restrictions only for the Grantor who originally sold this easement,
one (1) acre or less, except as provided under Section IV.F. herein,
for the purpose of constructing a dwelling house for the use only of that
Grantor or the Grantor's child, subject to the following conditions:
1. The total number of lots allowed to be released under this
paragraph may not exceed
a. one (1) lot if the size of the Easement
Property is 20 acres or more but fewer than 70 acres;
b. two (2) lots if the size of the Easement
Property is 70 acres or more, but fewer than 120 acres; or
c. three (3) lots if the size of the Easement
Property is 120 acres or more
provided that the
resulting density on the land does not exceed the density allowed under zoning
of the land before the Grantee purchased the Easement. The right reserved to the Grantor under this
subparagraph belongs only to the Grantor who originally sold this easement and
may be exercised only by the Grantor named in the instrument, and is
extinguished upon the death of the Grantor or a transfer of 100% of the Grantor's
interest in the land.
2. The Grantor shall pay the Grantee for any acre or portion
thereof released at the price per acre that the Grantee paid the Grantor for
the easement, provided that the Maryland Agricultural Land Preservation
Foundation's Board of Trustees has the right to approve the location
and configuration of the parcel(s) so released from easement; it being the
intent that the agricultural use of the land not be impaired by said
partitions;
3. Before any release from easement, the Grantor, and/or the
Grantor's child, if applicable, shall agree not to divide further any portion
of the land allowed to be released; the agreement shall be recorded among the
land records where the land is located and shall bind all future owners; and
4. If, while the land was in an agricultural preservation district,
the Foundation released free of the district's restrictions for a person owning
that land, one (1) acre or less for the purpose of constructing a dwelling
house, the Grantee shall not release free of easement restrictions for the
Grantor, an additional lot for the same purpose; for each lot that the Grantor
had excluded from the district's restrictions, the number of lots that the
Grantor otherwise would be entitled to have released under this Section IV.A. is reduced by one.
5. Regardless of the number of agricultural districts or easements
encumbering land owned by the Grantor herein, if the Grantee released one (1)
acre or less for the purpose of constructing a dwelling house for the use of
the Grantor or the Grantor's child, under a separate Agricultural District, the
Grantee shall not release free of easement restrictions for the Grantor or
Grantor's child, an additional lot on the land for the same purpose; for each
lot that the Grantor or Grantor's child had excluded from another district's
restrictions for this purpose, the number of lots that the Grantor or Grantor's
child otherwise would be entitled to have released under this Section IV.A. is reduced by one.
6. Regardless of how the property is titled, and subject to the
requirements and conditions of this Section IV.A., the Grantor,
___________________________________ (fill in all name(s) of title owners of record)
agrees that the following individuals are the only family members eligible for
release of a family lot: ______________________________________________________________
[fill in names of Grantors if individuals
and "children of them," or, in the case of a family entity owner, its
partners/ members/ shareholders as applicable, and "children of them." Note:
Do not fill in children's names in case of after-born children].
OR
A. Unrestricted
The
Grantor, or subsequent landowner, has the right to apply at any time for
release of one (1) unrestricted lot from this easement, to be retained by the
Grantor or subsequent landowner, or conveyed to anyone, to construct one (1) residential
dwelling, subject to the following conditions:
1. The resulting density on the property shall
be less than the density allowed under zoning of the property before the
Foundation purchased the Easement;
2. The size of an unrestricted lot shall be one
(1) acre or less except as provided under Section IV.F. herein;
3. The Grantor or subsequent landowner shall
agree not to subdivide further for residential purposes any acreage allowed to
be released, and the agreement shall be recorded among the Land Records where
the Land is located and shall bind all future owners;
4. The right to the lot has been taken into
consideration in the appraisal of fair market value and determination of
easement value;
5. The Grantor or subsequent landowner shall
pay the Grantee for any acre or portion thereof released at the price per acre
that the Grantee paid the Grantor for the easement;
6. The location of the lot to be subdivided is
subject to the approval of the local agricultural advisory board and the
Foundation; and
7. The Grantor or subsequent landowner has not
previously excluded land from the Easement.
8. If, while the land was in an agricultural
preservation district, the Foundation released free of the district's
restrictions one (1) acre or less for the purpose of constructing a dwelling
house for the use of the Grantor or Grantor's child, or for conveyance to a
third party, the Grantee shall not release free of easement restrictions for
the Grantor or subsequent landowner, an additional lot for the same purpose;
the lot that the Grantor had excluded from the district's restrictions shall be
the only release of a lot to which the Grantor or subsequent landowner is
entitled.
B. Application
for
Before a lot may be released from an easement's restrictions for
the construction of a dwelling house, under Section IV.A. above, the landowner and proposed lot owner shall submit an application
to the Grantee that:
1. The landowner and proposed lot owner have
signed;
2. Contains a declaration as to whether the
lot and dwelling house are only for the use of the original Grantor or the
original Grantor's child, whichever is the case, or for the use or sale to a
third party;
3. Includes signed statements indicating
approval of the release from the local agricultural land preservation advisory
board and confirmation from the county planning and zoning department that the
proposed lot appears to meet local zoning regulations;
4. Includes a description of the land to be
excluded and affected by both the dwelling and access to that dwelling, so as
to gauge the impact that the dwelling and any access to that dwelling will have
on the agricultural operations of the farm; and
5. Includes a property outline indicating the
location of the proposed lot.
C. Preliminary and Final Release
After
certifying that the landowner and proposed lot owner have met the conditions
provided herein, and a survey plat with metes and bounds description has been
submitted to the Grantee, the Grantee shall issue a Preliminary Release which
shall:
1. Become final when the Grantee receives and
certifies a non-transferable building permit in the name of the proposed lot
owner for the construction of a dwelling house; or
2. Become void upon the death of the person
for whose benefit the release was intended if the Grantee has not yet received
a building permit as provided herein.
Any
preliminary or final release, building permit or other document issued or
submitted in accordance with this section shall be recorded among the land
records where the land is located at the landowner's expense and shall bind all
future owners. Such release shall
contain restrictions as specified in Agriculture Article, Section 2-513,
Annotated Code of Maryland, as amended from time to time.
D. Existing
Dwelling
On
written request to the Grantee, a landowner, may exclude from the easement
restrictions one (1) acre or less surrounding each single dwelling house, which
existed as of the date of this Deed of Easement as a Family lot to which the
Grantor was eligible under Section IV.A. above, [Alternative language for unrestricted
lot form: "as an Unrestricted
E. Tenant
Houses
1. Subject to the Grantee's approval and the provisions of COMAR
15.15.03 ("Tenant House Requirements"), the Grantor, or its
successors and assigns in the fee ownership of the land (hereinafter referred
to as the "landowner"), may construct housing for tenants fully
engaged in operation of the farm, but this construction may not exceed one (1)
tenant house per full 100 acres (for example, one (1) tenant house for 100-199
acres; two (2) tenant houses for 200-299 acres). The land on which a tenant house is
constructed may not be subdivided or conveyed to any person, nor may the tenant
house be conveyed separately from the land, as governed by Section II.B.1. herein. The land
under and surrounding the tenant house shall not be released from the Easement,
it being understood that the tenant house is an accessory structure to the
agricultural use of the farm and as such its use is intended to be consistent
with the Purpose stated herein.
2. The Landowner shall make written
application to the Grantee that
a. the landowner has signed;
b. contains a declaration that the tenant
house is necessary for the operation of the farm and is only for the use of
tenants fully engaged in operation of the farm;
c. is accompanied by evidence that
demonstrates the need for a full-time tenant for the operation of the farm;
d. includes signed statements from the local
agricultural land preservation advisory board that the tenant house is
necessary for the operation of the farm and confirmation from the county
planning and zoning department that the proposed tenant house appears to meet
local zoning regulations;
e. includes a description of the land to be
affected by both the tenant house and access to that tenant house, so as to gauge
the impact that both will have on the agricultural operations of the farm;
f. Includes a scaled plan for the tenant
house, and accompanying outbuildings, including the square footage thereof; and
g. includes a map showing the location of the
proposed tenant house.
3. For purposes of this subparagraph, the terms
below are defined as follows:
a. "Tenant" shall be defined as a
natural person or persons fully engaged in operation of the farm, and who are
not the landowner, and/or who do not have a financial interest in the
landowner, including a shareholder interest, partnership interest or membership
interest, full, limited, or otherwise.
b. "Tenant house" shall be an
accessory structure consisting of no more than 2000 square feet, calculated by
first multiplying the exterior footprint of the portions of the structure with
multiple stories by the number of stories with windows and then adding the
exterior footprint of any portions of the structure with one story, but
excluding basements, attics, porches not used as a living space, garages, and
unenclosed decks, in which the tenant resides.
F.
If
circumstances described on Maryland Annotated Code Agricultural Article Section
2-513(b)(6) exist, a released lot may be two (2) acres
or less.
V. TERM
This
easement shall be in perpetuity.
VI. BREACH
If
the easement or any covenant, condition, limitation, restriction or other
provisions herein contained is violated or breached, the Grantee may after due
notice to the Grantor, the Grantor's personal representatives, successors or
assigns, institute an action in equity to enjoin, by ex parte,
temporary or permanent injunction, such violation or breach; to require the
restoration of the above described land to its condition prior to such
violation or breach
(including, but not
limited to, re-conveyance of title to land conveyed in violation of covenants
herein); to recover damages; and to take such other legal action as may be
necessary to insure compliance with the easement and the covenants, conditions,
limitations and restrictions or other provisions herein contained.
VII. MISCELLANEOUS PROVISIONS
A. If
the Grantor has any doubts concerning the easement, covenants conditions,
limitations or restrictions herein contained with respect to any particular use
of the said land, the Grantor may submit a written request to the Grantee for
consideration and approval of such use.
B. This
easement does not grant the public any right to access or any right of use of
the above described land.
C. Nothing
herein contained shall relieve the Grantor, the Grantor's personal
representatives, successors or assigns of the obligation to pay real estate
taxes.
D. As
used herein the singular form of a word includes both the singular and plural,
the plural form of a word includes both plural and singular, and reference to
words of certain gender includes reference to all genders.
E. The
provisions of this Deed of Easement shall be governed by the laws of the State
of
F. No
determination by any court, governmental body or otherwise that any provision
of this Deed of Easement is invalid or unenforceable in any instance shall
affect the validity or enforceability of (1) any other such provision, or (2)
such provision in any circumstance not controlled by such determination. Each such provision shall be valid and
enforceable to the fullest extent allowed by, and shall be construed wherever
possible as being consistent with, applicable law.
G. Notwithstanding
any provision herein to the contrary, the _____________ dwelling(s) existing as
of the date of this Deed of Easement may be used for any lawful purpose (e.g.
for residential purposes), unless otherwise prohibited by local zoning.
AND
the Grantor further covenants that the Grantor has not done or suffered to be
done any act, matter or thing whatsoever, to encumber the property hereby
conveyed; that the Grantor will warrant specially the property interest hereby
conveyed; and that the Grantor will execute such further assurances of the same
as may be required.
SUBORDINATION PROVISIONS
Deed of Trust
(Insert name of Trustee) and (insert name of
trustee), in their capacity as Trustees under a Deed of Trust dated (insert
date of Deed of Trust) and recorded among the aforesaid Land Records in Liber No. _____, folio ________, hereby join in the
execution of this Deed of Easement together with (insert name of Lender),
Beneficiary named in said Deed of Trust for the sole purpose of agreeing to
subordinate and do hereby subordinate to this Deed of Easement the Deed of
Trust Lien from Grantor.
OR
Mortgage
(Insert name of lender) hereby joins in the
execution of this Deed of Easement for the sole purpose of agreeing to
subordinate to this Deed of Easement, and hereby does subordinate to this Deed
of Easement the mortgage lien from Grantor dated ____________ and recorded
among the aforesaid Land Records in Liber No. _____________, folio ________.
[Signature pages and notary blocks will follow.]
* The choice for the family lot or
unrestricted lot option must be made at time of easement application.