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


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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