Managing Conservation Easements in Perpetuity - Environmental ...

P U T T I N G I T I N T O P R A C T I C E
Guidance
Scenario 1: Separate Conveyance Violation
1. The land trust has four options in this situation:
• Rescission. The land trust could demand that the sale be rescinded and
could sue to achieve that result. The owner and unsuccessful buyer
could look to their attorneys and, depending on policy terms, to the title
insurer for damages. Absent unusual circumstances or serious delay,
a court would likely enforce the easement and compel rescission of the
sale; however, it is always possible that one of the parties could successfully
argue that the equities of the situation make rescission unfair.
• Amendment or approval. Depending on the configuration of the land
and the factual circumstances, the land trust could consider whether
the separate sale of the single tract from the other two negatively affects
the purposes or conservation values of the easement. This determination
may require outside scientific expertise. If the purposes and
conservation values are not affected, and the owner and buyer do not
wish to rescind, the land trust could consider amendment of the easement
or approval of the subdivision if the conservation easement provides
for those types of approvals. The land trust must also address any
impermissible private benefit issues that may have occurred from this
separate sale.
• Create additional restrictions. The easement contains a reserved right for
one additional home site on one of the two parcels that the landowner
retained. As one option, the land trust could negotiate with the landowner
to eliminate this reserved right. Extinguishment of that house
site could offset the enhanced value resulting from sale of the parcel
to the buyer. Further, removal of the house site would create an overall
conservation gain for the easement property. All three tracts would
remain under easement and the landowner (seller) would pay the land
trust additional stewardship funds for the additional easement relationship
created by the now-separated parcel.
• Exchange. An alternative solution would be for the landowner (seller) to
conserve his adjacent, unconserved land in exchange for the approval of
the separate conveyance and require that those two parcels be merged
forever. The land trust can further require the seller or buyer to pay an
additional stewardship amount to cover the second easement relationship
created by the prohibited conveyance.
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Managing Conservation Easements in Perpetuity