H*3522(Rat #0155, Act #0092 of 1991)  General Bill, By H.H. Keyserling, 
R.A. Barber, J.M. Baxley, D.W. Beatty, K.S. Corbett, T.L. Farr, H.M. Hallman, 
J.L. Harris, B.H. Harwell, T.E. Huff, M.F. Jaskwhich, Keegan, K.G. Kempe, 
Littlejohn, Meacham, Phillips, Quinn, T.F. Rogers, C.L. Sturkie, C.Y. Waites, 
Wilkes, Wilkins and D.A. Wright
 A Bill to amend Title 27, Code of Laws of South Carolina, 1976, relating to
 property and conveyances, by adding Chapter 8 so as to enact the South
 Carolina Conservation Easement Act of 1991 and to repeal Chapter 9, Title 27
 relating to conservation restrictions and easements.

   02/14/91  House  Introduced and read first time HJ-3
   02/14/91  House  Referred to Committee on Agriculture, Natural
                     Resources and Environmental Affairs HJ-3
   04/17/91  House  Committee report: Favorable with amendment
                     Agriculture, Natural Resources and Environmental
                     Affairs HJ-5
   04/23/91  House  Amended HJ-251
   04/23/91  House  Read second time HJ-252
   04/24/91  House  Read third time and sent to Senate HJ-14
   04/25/91  Senate Introduced, read first time, placed on calendar
                     without reference SJ-25
   05/07/91  Senate Read second time SJ-27
   05/07/91  Senate Ordered to third reading with notice of
                     amendments SJ-27
   05/09/91  Senate Amended SJ-18
   05/09/91  Senate Read third time and returned to House with
                     amendments SJ-18
   05/14/91  House  Concurred in Senate amendment and enrolled HJ-3
   05/21/91         Ratified R 155
   05/27/91         Signed By Governor
   05/27/91         Effective date 05/27/91
   05/27/91         Act No. 92
   06/20/91         Copies available

AN ACT TO AMEND TITLE 27, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PROPERTY AND CONVEYANCES, BY ADDING CHAPTER 8 SO AS TO ENACT THE SOUTH CAROLINA CONSERVATION EASEMENT ACT OF 1991 AND TO REPEAL CHAPTER 9, TITLE 27 RELATING TO CONSERVATION RESTRICTIONS AND EASEMENTS.

Be it enacted by the General Assembly of the State of South Carolina:

S. C. Conservation Easement Act of 1991

SECTION 1. The 1976 Code is amended by adding:

Section 27-8-10. This chapter may be cited as the South Carolina Conservation Easement Act of 1991.

Section 27-8-20. As used in this chapter, unless the context otherwise requires:

(1) `Conservation easement' means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations, the purposes of which include one or more of the following:

(a) retaining or protecting natural, scenic, or open-space aspects of real property;

(b) ensuring the availability of real property for agricultural, forest, recreational, educational, or open-space use;

(c) protecting natural resources;

(d) maintaining or enhancing air or water quality;

(e) preserving the historical, architectural, archaeological, or cultural aspects of real property.

(2) `Holder' means:

(a) a governmental body empowered to hold an interest in real property under the laws of this State or the United States; or

(b) a charitable, not-for-profit or educational corporation, association, or trust the purposes or powers of which include one or more of the purposes listed in subsection (1).

(3) `Real property' includes surface waters.

(4) `Third-party right of enforcement' means a right provided by the grantor of the conservation easement to enforce selected terms of the conservation easement which is granted to a governmental body, a charitable, not-for-profit, or educational corporation, association, or trust, which though not the holder of the easement, is eligible to be the holder of such easement.

Section 27-8-30. (A) Except as otherwise provided in this chapter, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other easements and must be recorded in the same manner as other easements.

(B) 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 in the office of the register of mesne conveyances for each county where the land burdened by the conservation easement lies.

(C) Except as provided in Section 27-8-40(B), a conservation easement is unlimited in duration unless the instrument creating it provides otherwise.

(D) An interest in real property in existence at the time a conservation easement is created is not impaired by the easement unless the owner of the interest is a party to the conservation easement or consents to it.

(E) (1) A conservation easement may be conveyed to a holder without consideration by any local governmental body, including a county, municipality, and other political subdivision, if the conveyance is authorized by the elected members of the governmental body that owns the property to be burdened by the easement.

(2) For the purposes of this subsection an elected member of a governmental body includes a member serving on the governmental body ex officio, provided that the member has been elected to another office. A governmental body consisting of appointed members may make a conveyance only with the approval of the elected members of the governmental body that appointed the members.

(3) A governmental body proposing to convey an easement shall submit a proposal to the Advisory Board of the Heritage Trust Program and the advisory board shall conduct a public hearing on the proposal within sixty days of receiving the proposal. Within thirty days after the hearing the advisory board shall approve or disapprove the proposal based on the testimony, public comment, and other information presented at the hearing. If the proposal is approved, the governmental body shall conduct a public hearing not less than thirty nor more than sixty days after the approval, at which the easement must be explained and public comment received.

(4) For a governmental body to convey an easement under this subsection, at least two-thirds of the elected members of the governmental body shall approve the conveyance. No member of a governmental body that conveys an easement in accordance with this subsection is personally liable for the actions of the governmental body.

(5) Items (2), (3), and (4) of this subsection do not apply to an easement burdening land that is adjacent to a river or river segment whose designation as a scenic river under the State Scenic Rivers Program has been ratified by the General Assembly under Section 49-29-90.

Section 27-8-40. (A) An action affecting a conservation easement may be brought by:

(1) an owner of an interest in the real property burdened by the easement;

(2) a holder of the easement;

(3) a person having a third-party right of enforcement; or

(4) a person otherwise authorized by law.

(B) This chapter does not affect the power of a court to modify or terminate a conservation easement in accordance with principles of law and equity.

Section 27-8-50. A conservation easement is valid even though one or more of the following exist:

(1) It is not appurtenant to or does not run with an interest in real property.

(2) It may be or has been assigned to another holder.

(3) It is not of a character recognized traditionally at common law.

(4) It imposes a negative burden.

(5) It imposes affirmative obligations upon the owner of an interest in the burdened property or upon the holder.

(6) The benefit does not touch or concern real property.

(7) There is no privity of estate or of contract.

(8) It does not run to the successors and assigns of the holder.

Section 27-8-60. (A) This chapter applies to interests that meet the definition of conservation easement under Section 27-8-20(1) whether designated as a conservation easement or a covenant, an equitable servitude, a restriction, an easement, or otherwise.

(B) This chapter does not invalidate an interest designated as a conservation or preservation easement or a covenant, an equitable servitude, a restriction, an easement, or otherwise, that is enforceable under other laws of this State.

Section 27-8-70. For ad valorem tax purposes real property that is burdened by a conservation easement must be assessed and taxed on a basis that reflects the existence of the easement.

Section 27-8-80. A person or entity empowered to condemn may condemn a conservation easement for other public purposes pursuant to applicable provisions of the 1976 Code or federal law. Holders of the conservation easement must be parties to the proceedings along with the owner of the land."

Application to existing interests

SECTION 2. Chapter 8, Title 27 of the 1976 Code, added in this act, applies to interests created after the effective date of this act pursuant to Section 27-8-60, except it applies to an interest created on or before the effective date if it would have been enforceable if created after the effective date unless retroactive application contravenes the Constitution or law of South Carolina or the United States.

Repeal

SECTION 3. Chapter 9, Title 27 of the 1976 Code is repealed.

Time effective

SECTION 4. This act takes effect upon approval by the Governor.

Approved the 27th day of May, 1991.