Managing Conservation Easements in Perpetuity - Environmental ...

Hearsay is like children playing
the telephone game — the
message (or evidence) gets
more garbled as it passes from
person to person. That is why
courts do not generally admit
it unless based on firsthand
knowledge (with some extremely
specific exceptions).
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credibility. He or she should also review your tracking, storage and
management systems, both electronic and paper.
In this section, we will discuss some basic rules of evidence that apply
to the admission of documents most likely to be involved in conservation
easement litigation. We will also review some best practices for
records systems that are supportable in court and sustainable for the
long-term. Federal rules of evidence apply, as well as individual state’s
evidentiary rules (which are modeled after the federal rules to some
degree). You should work with your land trust’s attorney to understand
what state and local laws apply to conservation easement litigation and
real estate transactions in your region.
Hearsay and Business Records Rules
The business records rule is an exception to the “hearsay” rule. The
hearsay rule regarding the admissibility of documentary evidence
requires testimony from witnesses with direct knowledge of a document
or the facts contained in a document, before the document can
be admitted into evidence. If such a witness is not available, the document
may be deemed inadmissible hearsay by a court, in which case
the document cannot be used to assist in the enforcement of a conservation
easement. Because conservation easements are written to last
forever, at some point in time no one with direct knowledge of any of
the facts or documents affecting a particular conservation project will
still be alive and able to testify; therefore, to be able to enforce easements
in perpetuity, land trusts must act to ensure that their permanent
files will be admissible into evidence, regardless of when a court
action involving a particular conservation easement arises.
The typical business records rule allows a document or record to be
included in evidence in a judicial proceeding without direct testimony,
but only under the following conditions:
• The record was created at or near the time that is the subject of
the dispute (rather than later in anticipation of litigation)
• The record was created by someone with direct knowledge of
the facts of the particular situation that is the subject of the
record — or was created by someone who was given the information
by someone knowledgeable
Managing Conservation Easements in Perpetuity