Third-Party Enforcement of Conservation Easements

44 Pages Posted: 8 Aug 2012

See all articles by Jessica Jay

Jessica Jay

Vermont Law School; University of Denver Sturm College of Law

Date Written: Spring 2005

Abstract

The predominant means of protecting land privately between land trusts and landowners includes fee acquisition and voluntary agreements known as conservation easements. Land trusts, as the holders of conservation easements, are charged with perpetually enforcing the terms of the conservation easements they hold. While many land trusts maintain exclusive rights to enforce the terms of the conservation easements they hold, with the prevalence of the use of conservation easements as a tool for land protection, one might query: what happens if a land trust is unable to enforce the terms of a conservation easement it holds? And its corollary: who else may stand in the land trust's shoes to assist in enforcing the easement, and have standing to enforce the easement, on the land trust's behalf if and when it will not, or cannot, enforce?

The obvious answers include any co-holders of the easement, parties to the original conservation easement transaction, and parties identified in the conservation easement deed as having an enforcement right in lieu of, or in addition to, the holder's enforcement right. But the query remains, the answer to which is less obvious: do parties who are not holders or co-holders of a conservation easement, not parties to the original conservation transaction, nor identified by the conservation easement deed as having an enforcement right, have the authority or standing to enforce a conservation easement? The answer to the latter question varies from state to state and lies within each state's conservation easement enabling legislation, common law doctrines, case-law, and statutory laws, and is the subject of this article.

Keywords: Conservation Easement, Restriction, Servitude, Charitable Trust, Attorney General, Public Trust, Third Restatement of Law, Servitudes, Property, Common Law, Statutory Law, Oversight, Enforcement, Third Party

Suggested Citation

Jay, Jessica, Third-Party Enforcement of Conservation Easements (Spring 2005). Jessica E. Jay, Third Party Enforcement of Conservation Easements, 29 Vt. L. Rev. 757 (2005) , Available at SSRN: https://ssrn.com/abstract=2126409

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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