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Conservation Easements: Perpetuity and Beyond

40 Pages Posted: 12 Dec 2007  

Nancy A. McLaughlin

University of Utah S.J. Quinney College of Law

Abstract

Perpetual conservation easements are intended to protect the particular land they encumber for the conservation purposes specified in the deed of conveyance in perpetuity, or at least until circumstances have changed so profoundly that continued protection of the land for those purposes is no longer feasible. To protect the public interest and investment in perpetual conservation easements, and, at the same time, permit adjustments to be made to respond to changing conditions, such easements should be treated like any other form of charitable asset acquired by a government or charitable entity for a particular charitable purpose - i.e., as subject to equitable charitable trust principles. This Article outlines the considerable support for applying charitable trust principles to perpetual conservation easements, including uniform laws, the Restatement of Property, federal tax law, and judicial activity on this issue to date. This Article cautions that perpetual land protection is not appropriate in all circumstances and recommends a more considered use of perpetual conservation easements as a land protection tool. This article also explores the possible use of a number of nonperpetual conservation easements to accomplish land protection goals.

Keywords: conservation easement, conservation servitude, charitable trust, cy pres, perpetual, perpetuity, term easements

JEL Classification: K11, K32, K34

Suggested Citation

McLaughlin, Nancy A., Conservation Easements: Perpetuity and Beyond. Ecology Law Quarterly, Vol. 34, p. 673, 2007. Available at SSRN: https://ssrn.com/abstract=1032346

Nancy McLaughlin (Contact Author)

University of Utah S.J. Quinney College of Law ( email )

332 South 1400 East, Rm 101
Salt Lake City, UT 84112-0730
United States
801-581-5944 (Phone)
801-581-6897 (Fax)

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