Knowing that conservation easements are perpetual and likely to face a challenge at some point, conservation easements should be drafted with the expectation that they will have to be defended at some point in the future.
Litigation will always put the individual conservation easement at risk, but it may also have a precedent setting impact on all conservation easements. As such, a qualified organization and the landowner entering into a conservation easement should try to do everything possible to document their original intentions in putting the conservation easement on the property so people in the future have an easier time interpreting what the document requires and/or restricts. Clearly describing the conservation values that fit the objectives of the qualified organization, as well as documenting the landowner’s vision and how they overlap, is an important first step in the process.
Include a specific and "plain word" description of the purpose(s) in the conservation easement. When drafting the wording of the purpose and restrictions it is important to consider how it will be read 50-100 years from its writing. This means abbreviations, colloquialisms, acronyms and very technical terms should be defined or avoided.
A clearly written conservation easement that is specific in how it describes the purpose of the conservation easement, with restrictions that are simple to understand and easy to measure, will reduce the risk of infractions. It will also assist those trying to resolve a conflict. A clearly written conservation easement should provide insight into the original intention of the conservation easement.
Additionally, a number of preventative measures can be implemented in the qualified organization’s stewardship procedures to ensure the original conservation purpose of the easement is upheld. These measures include:
- using a consistent baseline template that addresses the restrictions and purpose of the conservation easement;
- using a consistent monitoring template that addresses the restrictions and purpose of the conservation easement;
- regular and consistent monitoring visits and reporting;
- open and regular communication between landowners and the qualified organization;
- having good violation and amendment policies in place in advance of any violations;
- having a stewardship fund for annual monitoring and stewardship requirements of each property; and
- having a legal defense fund.
Landowners should ensure that the qualified organizations with whom they are considering working have the stewardship policy and procedures the landowner feels are the most important to meeting the long term goals for their property.
