Managing Conservation Easements in Perpetuity - Environmental ...

trust to resolve even a single conservation easement violation can cause
many unpleasant consequences. The land trust may be:
• Disqualified from accepting further tax-deductible conservation
easements
• Fined, or have its charitable status revoked, by the IRS
Even if the land trust avoids these penalties, at the very least it will
endanger the organization’s credibility in its community and with its
landowners.
Conservation easement “enforcement”is often referred to by land trusts
as “violation resolution,” because it involves discovering and resolving
a violation of the easement. If the land trust and landowner cannot
resolve the dispute, then the land trust may take the landowner to court
to remedy the problem. Land trusts can use a variety of techniques
to resolve an easement violation before seeking remedies in court, and
many are described in this chapter. Conservation easement “defense”
means that the land trust responds to a legal action or challenge relating
to a conservation easement brought against the land trust by another
person or entity,including a landowner,neighbor or another third party.
While the vast majority of easements have not been violated, your
land trust should prepare for violations of varying degrees. The key is
to minimize the magnitude of violations, prevent expensive, unnecessary
legal actions and address the violations your land trust encounters
promptly and appropriately. Land trusts must understand that violations
usually appear suddenly and without warning. A landowner is
unlikely to alert the land trust that a violation is imminent; therefore,
your land trust must be prepared for the unexpected and be able to
respond rapidly and appropriately. Your land trust also must identify
potential sources of violations and head them off through proactive
assistance to conservation easement landowners.
Landowners are endlessly creative in interpreting conservation easements.
Your land trust, therefore, needs to have:
• A solid understanding of the conservation easements it holds
• Sound legal advice when dealing with new easement interpretation
issues
• Excellent communication and negotiation skills to resolve
violations
Violation Resolution and Easement Defense 257
Easement enforcement: The discovery
and resolution of an easement
violation.
Easement defense: The land trust’s
response to a legal action or challenge
relating to a conservation
easement.