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When Perpetual is Not Forever: The Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements

80 Pages Posted: 21 Apr 2012 Last revised: 29 Mar 2014

Jessica E. Jay

Vermont Law School; University of Denver Sturm College of Law

Date Written: April 12, 2012

Abstract

As the use of perpetual conservation easements to protect private property for the public’s benefit grows in popularity, so grow the challenges associated with these perpetually binding promises. Today’s conservation community faces significant challenges to amending and terminating perpetual conservation easements in the face of changing conditions, landscapes, climate, and public interests. Because of variations among different legal regimes’ guidance for perpetual conservation easements, much remains unsettled regarding perpetual conservation easement amendment and termination. This Article examines inconsistencies in the legal regimes and explores current and emerging common law, legislation, and policies addressing perpetual easement amendment and termination. This Article posits that the conservation community can protect the integrity of perpetual conservation easements by providing clear, consistent guidance through existing or new legal frameworks for state legislatures, courts, landowners, and easement holders, and suggests the means to achieve or craft such guidance.

Keywords: conservation easement, perpetual, perpetuity, changed conditions doctrine, charitable trust doctrine, Restatement of Law, Property, Uniform Conservation Easement Act, Internal Revenue Code Section 170(h), Treasury Regulation Section 1.170A-14, amend, amendment, terminate, termination, extinguishment

Suggested Citation

Jay, Jessica E., When Perpetual is Not Forever: The Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements (April 12, 2012). Harvard Environmental Law Review, Vol. 36, No. 1, 2012; Vermont Law School Research Paper No. 14-12; U Denver Legal Studies Research Paper No. 12-35. Available at SSRN: https://ssrn.com/abstract=2043193

Jessica Jay (Contact Author)

Vermont Law School ( email )

68 North Windsor Street
P.O. Box 60
South Royalton, VT 05068
United States

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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