Managing Conservation Easements in Perpetuity - Environmental ...

ary, these less permanent approaches can be more appropriate than
amending the easement. One concern with these approaches, however,
is that some of these methods are very similar to amendments, but
shortcut the amendment process in ways that can potentially undermine
easement programs. Therefore, it is important to consult with
experienced legal counsel regarding the risks associated with using
alternatives to amendments.
Corrective Deeds
Modifications that merely correct mutual mistakes in the original easement
can be recorded as “corrective deeds” or “corrective conservation
easements” rather than “amendments.” These types of mutual mistakes
include corrections of minor errors and oversights mutually acknowledged
by the grantor and easement holder. These deeds are used to
correct errors such as scrivener’s mistakes, erroneously stated acreage
or parcel descriptions or missing pages, sections or information. These
are truly errors and do not create substantive changes to provisions or
intentions reflected in the original easement. All corrections should
be consistent with the amendment principles and the land trust’s
amendment policy and procedures. An advantage to using the term
“corrective deed” or “corrective conservation easement” as opposed to
“amendment” is that the document’s title clearly indicates a correction
of an error even if that correction creates a substantive change to
the provisions. The corrective deed does not alter the intentions of the
original parties to the easement.
Corrective deeds are likely to present problems only if the affected
parties have relied on the existing easement deed. For example, if an
appraiser relied on the original deed to arrive at an easement value for
tax deduction purposes that is now inconsistent with the value under
the corrected deed, then the appraisal must be corrected and amended
tax returns may need to be filed.
Release Deeds
Release deeds or quitclaim deeds (the title depends on your state real
estate laws) act in a similar manner to corrective deeds. If the landowner
wishes to eliminate a reserved right, then he or she can sign a
quitclaim or release deed to the land trust. These types of deeds work
only if the land trust is not exchanging a new reserved right for the one
released. The released right must be described carefully and explicitly
Amendments 213
Before agreeing to an easement
amendment, land trusts should
always evaluate alternatives.