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Landowners grant conservation easements to conservation organizations (“land trusts”) in perpetuity. The conservation objectives of the easement and the associated restrictions on how land can be used are intended to be permanent. Land trusts and their allies across the nation go to great lengths to ensure this permanence.
When landowners grant a conservation easement to a land trust, it is only the beginning of the conservation endeavor. In the ensuing years and decades, the land trust will ceaselessly work to ensure that the conservation objectives of the easement and the associated restrictions on land development and use are respected in perpetuity. Fortunately for those concerned with the long run, the law strongly backs land trusts in this work, and land trusts take conservation permanence seriously.
This is crucial because—although the landowners who grant conservation easements are almost always strong conservation advocates—subsequent owners of the land may see the conservation easement as something to be ignored or overcome. They may challenge conservation restrictions, thinking they can cajole, evade, or overpower the land trust or otherwise circumvent the easement.
Such attempts fail due to numerous factors and safeguards:
A conservation easement is an interest in real estate; it is not just a piece of paper in a file. The easement is accorded respect under the law as is other real property. The land trust—the holder of the easement—may fully defend its property rights in the courts.
Pennsylvania’s courts respect conservation easements. Conservation easement holders and the conservation values they uphold prevail—almost without exception—when a dispute regarding interpretation or enforcement leads to litigation. If structures have been built in violation of an easement, courts can and do order their demolition at the violator’s expense. If parties enter an agreement in violation of an easement, the courts will vacate that agreement. In many cases, the courts order the violator to pay the easement holder’s attorney fees and costs incurred in enforcing the easement.[i]
Pennsylvania law prevents a person from sidestepping conservation protections by arguing that the terms in the easement document are unclear. The Conservation and Preservation Easements Act provides that any ambiguity in the easement’s restrictions is resolved in favor of the conservation objectives of the easement and conservation purposes of the Act.[ii]
Land trusts view the upholding of the conservation objectives and enforcement of the restrictions set forth in easement documents as an ethical obligation. This responsibility is seen as central to their existence as conservation organizations. Their commitment is often expressed in the easement document. For example:
“Holder must exercise the powers granted to it by this Grant to block activities, uses, and Improvements of the Property inconsistent with the Conservation Objectives.”
The volunteers or professionals (as the case may be) operating land trusts will vigorously defend the conservation values placed in their charge. They will seek good relationships with the owners of the land in which they have an interest, but ultimately, if duty calls to do so, they will act to enforce conservation restrictions and uphold their responsible interpretations of the easement document.
The people operating land trusts are reasonable and seek to be fair in resolving differences with landowners. They also strive to resolve disputes outside of court to avoid escalation of conflict and the costs entailed by litigation. Nevertheless, they prepare for the worst and are financially ready to litigate if need be. When acquiring easements and in their regular course of business, land trusts work to build substantial stewardship endowments, easement defense funds, and the like to ensure that they always have the money at hand to prevail in the courts in the event of litigation.[iii]
In addition to self-insuring with endowments and other funds, many land trusts participate in the Terrafirma Risk Retention Group LLC,[iv] a risk pool for organizations that insures the costs of upholding conservation easements when they have been violated or threatened. Terrafirma covers the attorney and expert fees, among other expenses, of the land trust in the event that the land trust either starts a lawsuit or is named in a lawsuit. Terrafirma also covers fees for efforts to resolve cases prior to litigation.
Land trusts do not operate and defend conservation easements in a vacuum. Seventy Pennsylvania land trusts collaborate and lean on each other as part of WeConservePA. They further collaborate with land trusts across the nation. Even if a land trust lacks Terrafirma insurance, the risk pool will back litigation important to the overall defense of conservation. And, in the face of threats to conservation, individuals will step forward to help a land trust uphold a conservation easement important to them and their community.
Land trusts have successfully upheld conservation easements since the 1960s in Pennsylvania. They have the commitment and means to continue doing so in the coming decades.
[iii] This is why land trusts ask families that are donating conservation easements to make financial contributions as well.
[iv] Terrafirma is owned and operated by more than 540 land trusts.
WeConservePA produced this guide with support from the Colcom Foundation, the William Penn Foundation, and the Community Conservation Partnerships Program, Environmental Stewardship Fund, under the administration of the PA Department of Conservation and Natural Resources, Bureau of Recreation and Conservation.
Andrew M. Loza is the author.
Nothing contained in this or any other document available at ConservationTools.org is intended to be relied upon as legal advice or to create an attorney-client relationship. The material presented is generally provided in the context of Pennsylvania law and, depending on the subject, may have more or less applicability elsewhere. There is no guarantee that it is up to date or error free.
© 2022 WeConservePA. Text may be excerpted and reproduced with acknowledgement of WeConservePA.