Leases
A lease is one Type of formal conservation agreement. A lease is a contract by which a rightful possessor of real property conveys the right to use and occupy the property in exchange for consideration, usually rent. A lease can include any type of less-than fee-simple transfer of public or private lands and resources. While the term lease most often applies to an authorization to use publicly-owned lands and resources, leases on privately-owned lands and resources can and do occur. However, less-than fee-simple acquisitions of privately-owned lands and resources are most commonly referred to as easements. Other less-then fee-simple acquisition and authorization mechanisms for both publicly-owned and privately-owned lands and resources include, but are not limited, to contracts, concessions, licenses, permits, and assents, among others. While the formal title ascribed to many less-than fee-simple authorization mechanisms implies certain rights and conditions based on property law and common law, the specific requirements and conditions spelled out in each document must be carefully developed and assessed. In the end, there can be extremely similar requirements and conditions in any one of the above-listed less-than fee-simple authorization mechanisms.
Proprietary Nature
Image courtesy Audubon California
It is important to qualify the large group of authorization mechanisms within the lease category as those mechanisms that are proprietary in nature. In other words, for the purposes of this toolkit, a lease is a mechanism that transfers or otherwise involves some form of less-than fee-simple property right or responsibility. This is in contrast to:
- Fee-simple ownership agreements in which all (or nearly all) property rights are transferred.
- Mechanisms in which no property rights are transferred. Many forms of authorization carry with them explicit legal connotations, which may vary from country to country, that property rights are not transferred from one party to another. For example, management agreements and licenses normally do not convey property rights. Also, regulatory mechanisms are issued by controlling (usually government) authorities that possess police powers regardless of ownership. Regulatory mechanisms may have similar names (i.e., permit) applied to them, which reinforces the importance of assessing the explicit language within the documents.
Parties
Private entities frequently enter into leases with public entities to acquire rights and responsibilities over public lands and resources within ocean and coastal environments. However, private entities may also enter into lease agreements with other private individuals and private companies as well. These private parties may own lands and resources themselves or may have entered into lease agreements with public entities.
Enforcement Mechanisms
Lease agreements are legally binding documents which can be upheld in civil court. In some cases, lease conditions may be enforceable through police powers as well. However, there are normally less litigious enforcement mechanisms in leases such as lease payments and lease cancellation clauses that provide incentive-based enforcement of contract terms and conditions.
Duration
The duration of leases can vary widely from less than a year to perpetuity. However, most leases are entered into for a period of time less than perpetuity. When leases are entered into with government entities, the maximum and minimum lease durations are often defined in law. On occasion, despite laws to the contrary (or in the absence of laws), leases issued by government entities in the past, when government proprietary management programs were less evolved, were for perpetuity. Leases between two private parties can usually be as long or short as the two parties desire. This is in contrast to traditional conservation easements (as applied to both terrestrial and aquatic areas) between two private parties, which are normally for perpetuity.