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Enforcing Perpetual Conservation Easements Against Third-Party Violators

  • Author(s): Jay, Jessica E.
  • et al.
Abstract

Among the most daunting challenges the holder of a perpetual conservation easement faces is the enforcement of the easements it holds, for all time, and against all violators. National organizations estimate that at least forty million acres of land in the United States are protected with perpetual conservation easements. Each of these conservation easements is held by an entity, either a government agency or a tax-exempt, non-profit land trust, charged with the responsibility of enforcing easement violations against any and all violators. Holders must contend with violations caused by landowners and third parties. In the latter instance, someone who is not the owner of the easement-protected property enters the land by trespass without the knowledge or permission of the landowner or the easement holder, and violates the conservation easement. A Land Trust Alliance (Alliance) survey, specifically designed to gather information on conservation easement violations, reveals that behind successor-generation landowners, third parties are the most frequent class of easement violators. The findings of this survey track those of an earlier Alliance survey and are consistent with violation reporting in the most recent Alliance census. Further, anecdotal reporting of conservation easement violations indicates that many violations are caused by third parties—possibly as much as forty percent.

Violations caused by landowners whose lands are protected with conservation easements present fairly linear practical and legal avenues for resolution. The easement holder has an established means of reaching the landowner through the conservation easement document. When a third party causes a violation, the legal and practical avenues are less clear. Part II of this Article explores the legal and practical avenues available for pursuing third-party violators in the context of holders’ responsibilities regarding the applicable law of perpetual conservation easements. Part III identifies the tools available for conservation easement drafting, stewardship, management, and enforcement of third-party violations. Part IV distills lessons learned from litigated and non-litigated cases of third-party violations. The Article concludes by offering practical guidance to easement holders anticipating or addressing third-party violations.

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