Not Losing The Forest For The Trees: Distinguishing Conservation Transfer Fees From Other Private Transfer Fees

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Private transfer fee covenants against real property are increasingly under fire from Congress, federal regulators and state legislatures. It will only be a matter of time before private transfer fees will also be challenged in state courts as not meeting the requirements for a servitude. As these bodies take aim at the private transfer fee, they literally must not lose sight of the forest for the trees. A private transfer fee that benefits conservation and environmental stewardship is consistent with the traditional use of real covenants and can provide a valuable benefit to property owners and the public. This article argues that private transfer fees, when used to fund conservation and environmental stewardship, meet the historical and modern requirements for a valid servitude, that courts should hold them enforceable, and that policymakers should exempt them from any private transfer fee restrictions. 

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