Third-Party Enforcement of Conservation Easements
44 Pages Posted: 8 Aug 2012
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
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