An Examination of Court Opinions on the Enforcement and Defense of Conservation Easements and Other Conservation and Preservation Tools: Themes and Approaches to Date

37 Pages Posted: 12 Aug 2012

See all articles by Jessica Jay

Jessica Jay

Vermont Law School; University of Denver Sturm College of Law

Melissa Thompson

affiliation not provided to SSRN

Date Written: 2001

Abstract

This article surveys conservation easement enforcement and defense decisions to date, and examines those decisions under the rubric of several general themes. The article focuses on themes influencing or driving the opinions of courts in conservation easement enforcement and defense actions across jurisdictional lines. These themes include issues of standing, ambiguity and the role of intent in judicial decision-making on issues of conservation easement enforcement and defense, judicial attitudes towards restrictive servitudes, the role of common law rules of real property and contract construction and interpretation, and cost-benefit analyses.

Part I of this article provides an overview and survey of the cases reviewed. Part II examines the issue of standing and participation. Part III looks at the roles of intent, common law rules of real property and contract construction, the merger doctrine, and cost-benefit analyses in a series of defense and enforcement opinions. Part III also includes an analysis of a unique line of case involving the Foundation for Preservation of Historic Georgetown. In conclusion, we advise land trusts to anticipate confronting most or all of the issues raised to date in cases involving conservation easement enforcement and defense.

Keywords: conservation easement, enforcement, defense, historic preservation easement, servitude, restriction, cost benefit analysis, contract construction, common law rules restrictions, merger

Suggested Citation

Jay, Jessica and Thompson, Melissa, An Examination of Court Opinions on the Enforcement and Defense of Conservation Easements and Other Conservation and Preservation Tools: Themes and Approaches to Date (2001). Denver University Law Review, Vol. 78, p. 373, 2001, Available at SSRN: https://ssrn.com/abstract=2128135

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

Melissa Thompson

affiliation not provided to SSRN ( email )

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