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
Date Written: April 12, 2012
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
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