Managing Conservation Easements in Perpetuity - Environmental ...

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staff member must also ensure that it properly addresses any conflict
of interest. For more on conflicts of interest and insiders, see the Land
Trust Alliance course “Avoiding Conflicts of Interest and Running an
Ethical Land Trust.”
Consumer Protection, Fiduciary and Common Law Protections
An issue related to the charitable trust doctrine is the nature and content
of state and local laws on solicitation of charitable funds and the application
of these laws to conservation easements and their amendment.
States prohibit the fraudulent solicitation of charitable gifts and funds
through either state statutes that specifically prohibit fraudulent solicitation
or by the application of common law. A variety of consumer
protection laws may also apply to conservation easement amendments.
Some attorneys believe that a land trust that publicly describes
its conservation easements as perpetual in duration, while occasionally
granting amendments that diminish conservation easement protections
of conservation values, risks running afoul of fraudulent solicitation
laws or other similar provisions. Other attorneys feel that, unless
there is clear evidence of fraud or the original easement grantor has a
specific interest in the result of a decision by a land trust with respect
to an easement amendment, such a determination is unlikely and the
attorney general will generally decline to get involved.
The issue is complicated by possible variations in the extent to which
states recognize charities as fiduciaries who owe a fiduciary responsibility
to easement grantors.For example,California declares that “there
exists a fiduciary relationship between a charity or any person soliciting
on behalf of a charity, and the person from whom the charitable
contribution is being solicited” (Cal. Bus. & Prof. Code §17510.8).
Some other states reach this result through court decisions. Even if
state law does not recognize a fiduciary relationship in all interactions
between charities and donors, specific relationships and interactions
can be found to create a fiduciary duty because of their particular
circumstances. For example, fiduciary duties are commonly recognized
as more likely to arise and as imposing higher obligations if the donor
and beneficiary of the relationship is an older person because there
may be more questions about that person’s state of mind and competency.
Land trusts should be aware of such a possibility, because many
conservation easement donors are older individuals.
Given the legal uncertainties in application of fraudulent solicitation
laws and fiduciary duties, how does a land trust proceed? Land trusts
Managing Conservation Easements in Perpetuity