2021 Georgia Code
Title 44 - Property
Chapter 10 - Historic Preservation
Article 1 - Uniform Conservation Easements
§ 44-10-3. Creation or Alteration of Conservation Easements; Acceptance; Duration; Effect on Existing Rights and Duties; Limitation of Liability; Encumbered Property Must Be Located Within Boundaries of Locality Holding Easement

1. Except as otherwise provided in this article, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other easements, except that a conservation easement may not be created or expanded by the exercise of the power of eminent domain.
2. No right or duty in favor of or against a holder and no right in favor of a person having a third-party right of enforcement arises under a conservation easement before its acceptance by the holder and a recordation of the acceptance.
3. Except as provided in subsection (c) of Code Section 44-10-4, a conservation easement is unlimited in duration unless the instrument creating it otherwise provides.
4. An interest in real property in existence at the time a conservation easement is created is not impaired by it unless the owner of the interest is a party to the conservation easement or consents to it.
5. The ownership or attempted enforcement of rights held by the holder of an easement shall not subject such holder to any liability for any damage or injury that may be suffered by any person on the property or as a result of the condition of such property encumbered by a conservation easement.
6. No county, municipality, or consolidated government shall hold a conservation easement unless the encumbered real property lies at least partly within the jurisdictional boundaries of such county, municipality, or consolidated government.

(Code 1981, §44-10-3, enacted by Ga. L. 1992, p. 2227, § 1; Ga. L. 1993, p. 91, § 44; Ga. L. 1993, p. 794, § 1; Ga. L. 2012, p. 257, § 3-2/HB 386.)

The 2012 amendment, effective January 1, 2013, added subsection (f). See Editor's notes for applicability.

- Obtaining of scenic easements for scenic river system, § 12-5-353.

- Ga. L. 2012, p. 257, § 7-1(e)/HB 386, not codified by the General Assembly, provides that the 2012 amendment shall be applicable to all taxable years beginning on or after January 1, 2013.

Ga. L. 2012, p. 257, § 7-1(h)/HB 386, not codified by the General Assembly, provides: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of general law as it existed immediately prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-1(i)/HB 386, not codified by the General Assembly, provides: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-2/HB 386, not codified by the General Assembly, provides for severability.

- For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 112 (2012). For note on 1993 amendment of this Code section, see 10 Ga. St. U. L. Rev. 207 (1993).

OPINIONS OF THE ATTORNEY GENERAL

Conservation easement possible outside historic district.

- Where the purpose of a conservation easement is to preserve land or water areas predominantly in their natural, scenic, landscape, or open condition or in agricultural, farming, forest, or open space use, it is not essential that the land be located within a historic district. 1976 Op. Att'y Gen. No. 76-50.

RESEARCH REFERENCES

Am. Jur. 2d.

- 20 Am. Jur. 2d, Covenants, Conditions, and Restrictions, § 47 et seq. 25 Am. Jur. 2d, Easements and Licenses, §§ 5, 8, 82, 83 et seq.

- 28A C.J.S., Easements, §§ 13, 52 et seq., 130, 143 et seq., 159 et seq.

- Relief in injunction suit in respect of easement as affected by doubt as to right to, or extent or location of, easement; necessity of first establishing easement at law, 139 A.L.R. 165.

What constitutes unity of title or ownership sufficient for creation of an easement by implication or way of necessity, 94 A.L.R.3d 502.

Scope of prescriptive easement for access (easement of way), 79 A.L.R.4th 604.