Managing Conservation Easements in Perpetuity - Environmental ...

treats conservation easements as a property interest, then under your
state’s real estate laws and case law you may have standing. A land trust
may prevail by arguing that it holds a property right against which the
violator trespassed, and so the land trust is a directly aggrieved person
and has standing to sue. If your land trust is considering pursuing a
case against a third party for violating the conservation easement without
including the landowner in the case, you may have to convince the
court that this action is appropriate. If your state does not create a real
property right in a conservation easement, then your land trust may
have to argue that legislative intent of the enabling legislation allows
your land trust to proceed against a third party without the landowner
to overcome objections based on the failure to include an indispensable
person (the landowner) and the land trust’s possible lack of standing to
sue the third person.
A land trust would only consider pursuing judicial remedies against a
third party when the landowner is without fault in causing the violation
and the landowner wants to avoid being a party to the suit. If the
owner is a violator or contributes in any way to the easement violation,
then the land trust can sue the landowner, if other violation resolution
techniques are not successful.
If a third-party violation winds up in court, the judge may look to
the conservation easement to determine the intent of the parties and
whether the original landowner intended the land trust to have the ability
to enforce third-party violations. Land trusts may want to consider
drafting easements to include explicit rights of entry to enforce easement
restrictions against third parties without joining the owner. Land trusts
may also want to consult with their attorney to determine the law in their
state regarding the standing of a land trust to enforce its property rights
conferred by the conservation easement if that state considers a conservation
easement a property right. The nature of your state’s laws will
affect what you need to include in the conservation easement regarding
enforcement of trespass. Your state’s conservation enabling act, if silent
on this point, does not necessarily mean that standing is precluded.
tion resolution with the landowner. The land trust staff or volunteer
entrusted with approaching the landowner needs to know the degree
of flexibility he or she has in negotiating with the landowner about
implementing the proposed resolution. Until the land trust has sufficient
experience to determine and implement a response, legal counsel
should be involved in this discussion for all minor violations or technical
lapses. Always involve legal counsel in discussions concerning
major violations, regardless of the land trust’s experience with violations.
Depending on the severity of moderate violations, the land trust
may want to more deeply involve legal counsel.That involvement need
Violation Resolution and Easement Defense 285
Indispensable party: A person
or entity that is essential to be
included in a lawsuit so that all the
issues may be fully resolved and an
adequate judgment rendered.
Always involve legal counsel
in discussions related to
moderate and major violations,
regardless of your experience
with violations.