Tuesday, February 25, 2014

Wolf on the 'Term Creep' Problem in Property Law

WolfMichael Wolf (Florida) has posted Conservation Easements and the 'Term Creep' Problem (Utah Envtl Law Review) on SSRN.  Here's the abstract:

This Essay (published in 2013 Utah Law Review and Volume 33 of the Utah Environmental Law Review) first discusses the “term creep” problem that has long plagued the Anglo-American common law of real property, that is, the tendency of common law courts (and in turn commentators and legislators) to use the same label to describe two or more conceptually discrete, though related, concepts. The confusion between easements of the “traditional” and “conservation” varieties is just one in a long line of situations in which the decision to allow often significantly dissimilar concepts to share the same name has led to unfortunate consequences.The second part of the Essay explains the substantive nature of the hybrids known most familiarly as conservation easements. Statutory and uniform law drafters were straightforward in their efforts to cherrypick the best attributes of traditional servitudes, while discarding troublesome disabilities, in order to achieve their admirable legislative goals.The third part asks why proponents of conservation restrictions should care about term creep, and the final section explores three benefits that outweigh the burdens of removing “easement” or “servitude” from the name of conservation restrictions and adopting the terminology used in the federal tax arena.


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