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Conservation Easement Amendment, Modification and Termination
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Amending Conservation Easements: Evolving Practices & Legal Principles
This report presents an analysis of months of research and dialogue among leading attorneys, practitioners and academics on the issues of how, when and if conservation easements should be amended.
Conservation Easement Amendments: A View from the Field
An original draft of this paper was prepared for the Environmental and Natural Resources Law Seminar, Stanford Law School, April 10, 2006. 27 pages.
Amending Perpetual Conservation Easements - Confronting the Dilemmas of Change: A Practitioner’s View
This paper explores the legal, ethical, and public relations issues surrounding amendments and the limitations of applying the charitable trust doctrine. It proposes a legislative solution to clarify the rules for amending easements in response to changed circumstances.
Disclaimer
Nothing contained in this or any other document available at ConserveLand.org or ConservationTools.org is intended to be relied upon as legal advice. The authors disclaim any attorney-client relationship with anyone to whom this document is furnished. Nothing contained in this document is intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any person any transaction or matter addressed in this document.
Copyright
© 2012 Pennsylvania Land Trust Association
Text may be excerpted and reproduced with acknowledgement of ConservationTools.org and the Pennsylvania Land Trust Association.
Conservation easements are written to last — to endure and protect important resources, no matter people’s whims through the years. However, understandings of how best to meet conservation objectives change; the world changes. When facing a proposal to amend an easement document, an easement holder should be prepared to make ethical, legal, sound and practical decisions.
Summary
When should one amend a conservation easement? What changes are appropriate? What changes are not? What factors should one consider? What mistakes can one learn from? What should an amendment policy look like?
Conservation easements are written to last — to endure and protect important resources, no matter people’s whims through the years. However, circumstances change; understandings of how best to meet easement objectives change; the world changes. As the number and age of easements increase, landowners and easement holders will increasingly find cause to consider modifications to an easement document. How can easement holders make ethical, legal, sound and practical decisions about amending easements? What are the risks of action — and inaction?
Contents of Main Description
Land Trust Standards and PracticesSeven Principles Regarding Amendment
PLANNED FOR COMPLETION IN 2013
Land Trust Standards and Practices
Excerpt from Land Trust Standards & Practices (2004), published by the Land Trust Alliance, Practice 11I:
The land trust recognizes that amendments are not routine, but can serve to strengthen an easement or improve its enforceability. The land trust has a written policy or procedure guiding amendment requests that: • includes a prohibition against private inurement and impermissible private benefit; • requires compliance with the land trust’s conflict of interest policy; • requires compliance with any funding requirements; • addresses the role of the board; and • contains a requirement that all amendments result in either a positive or not less than neutral conservation outcome and are consistent with the organization’s mission.
Seven Principles Regarding Amendment
The Land Trust Alliance published the report Amending Conservation Easements: Evolving Practices and Legal Principles in 2007 with recommendations pertaining to Amendments. The report recommends seven principles to guide Amendment policies: “An amendment must:
- Clearly serve the public interest and be consistent with the organization’s mission.
- Comply with all federal and state law.
- Not jeopardize the land trust’s tax-exempt status or status as a charitable organization under federal or state law.
- Not result in private inurement or confer impermissible private benefit.
- Be consistent with the conservation purpose(s) and intent of the easement.
- Be consistent with the documented intent of the donor, grantor and any direct funding source.
- Have a net beneficial or neutral effect on the relevant conservation values protected by the easement.”
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