Interpreting Conservation Easements

7 Pages Posted: 12 Sep 2015 Last revised: 11 May 2019

See all articles by Nancy A. McLaughlin

Nancy A. McLaughlin

University of Utah S.J. Quinney College of Law

Date Written: 2015

Abstract

Billions of public dollars are being invested in conservation easements through federal, state, and local tax incentive and easement-purchase programs. The National Conservation Easement Database estimates that roughly 40 million acres are now encumbered by conservation easements. As the number of conservation easements grows, the easements become more complex, and the underlying lands change hands, we can expect to see an increasing number of disputes involving the interpretation of these instruments.

A key question in this context is whether conservation easements should be interpreted in favor of "free use of land," which is a rule of construction often applied in the private servitude context. This short article argues that the answer to that question is no, and that conservation easements, which are created to benefit the public and are heavily subsidized by the public, should be interpreted in favor of carrying out their conservation purposes.

Keywords: conservation easement, free use of land, restrictive covenant, restrictive covenant interpretation, in gross, easement interpretation, servitude interpretation, anti-restrictions policy, conservation servitude, public policy

JEL Classification: Q3, Q24, L3

Suggested Citation

McLaughlin, Nancy A., Interpreting Conservation Easements (2015). 29 Probate & Property 30 (2015), University of Utah College of Law Research Paper No. 134, Available at SSRN: https://ssrn.com/abstract=2659399

Nancy A. 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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