If a land trust intends to amend a grant of conservation easement, implementation of the changes requires careful planning and drafting. The consequences of a poor execution range from missed opportunities to improve easement stewardship to inadvertent elimination of conservation protections.
This article outlines the current guidance on the circumstances under which conservation easements, meant to protect land “in perpetuity” can be amended or terminated, and offers some drafting suggestions. It focuses on tax-deductible conservation easements. Although the law in this area is still developing, much can be done to ensure that conservation easements are drafted to comply with all relevant laws, carry out the landowners’ intent, and provide easement holders with the flexibility needed to administer easements consistent with their overall charitable conservation purposes in light of changing conditions.
This publication covers the complexity and various perspectives in easement amendment decisions and presents case studies. Originally published in 2007, the second edition was produced in 2017.
This guide informs easement holders of legal matters to consider under Pennsylvania law and the Internal Revenue Code when making decisions regarding the amendment of grants of conservation easement.
Guidelines for New Hampshire easement holders prepared through the collaborative efforts of the New Hampshire Department of Justice, Charitable Trusts Unit; Paul Doscher at the Society for the Protection of New Hampshire Forests’ Center for Land Conservation Assistance; and Nancy McLaughlin at the University of Utah Law School. 16 pages.
Given that change is inevitable and predicting the future is impossible, it is clear that conservation easements must be able to evolve over time so they can continue to provide the conservation benefits for which they were acquired. But who should be entitled to make the decision to amend a “perpetual” easement, and what standards should be applied in determining whether and when such amendments are appropriate? This article uses a case study to explore the issue of amending perpetual conservation easements.
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.
An original draft of this paper was prepared for the Environmental and Natural Resources Law Seminar, Stanford Law School, April 10, 2006. 27 pages.
This 26 page article presents a brief history of the evolution of the law surrounding conservation easements and identifies some of the problematic areas with the current law. After evaluating the state of the law, it proposes a solution that would maintain the efficiency of conservation easements while ensuring the advancement of intended policy goals, and protecting the public’s interest in those easements. Finally, it examines the practical mechanics of how Kansas’s courts can apply charitable trust law to conservation easements.
This is the fourth in an exchange of articles published by the Wyoming Law Review discussing the application of charitable trust principles to conservation easements conveyed as charitable gifts.
This comprehensive guidebook provides a structured process for organizations that want to upgrade older easements. It includes a process for analyzing and managing problem easements and offers options for resolving problem easements. It also includes lessons learned from six case studies and national research conducted by Solid Ground Consulting.
Many conservation easements are conveyed to government entities or land trusts in whole or in part as charitable gifts. The primary issue addressed in this article is whether such easements constitute restricted or unrestricted charitable gifts for state law purposes. It offers a rebuttal to “In Hicks v. Dowd: The End of Perpetuity”, in which C. Timothy Lindstrom asserts that perpetual conservation easements donated to government entities or land trusts are unrestricted charitable gifts, and thus, the holders of such easements are not obligated under state law to administer the easements in accordance with their stated terms or purposes.
This article provides historical background on the evolution of several of the legal doctrines at play when conservation easements are modified or
terminated; addresses the constitutionality of legislation attempting to
modify or terminate a specific conservation easement; and addresses the
constitutionality of legislation purporting to lessen the procedural and substantive burdens associated with the modification and termination of conservation easements in general.
The first edition of the model and commentary was published in 2011; the model was updated in 2013. The model is tailored to Montana law and the commentary identifies areas where some of the principles the Land Trust Alliance outlines in its publication Amending Conservation Easements are in potential conflict with Montana law.
PALTA prepared this model policy to help guide the responsible consideration of potential amendments. A land trust will want to adapt the model to match its organizational culture.
This 78 page Harvard Environmental Law Review is subtitled "The Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements". The article examines inconsistencies in the legal regimes and explores current and emerging common law, legislation, and policies addressing perpetual easement amendment and termination.