'Amending & Terminating Perpetual Conservation Easements'

Nancy McLaughlin (professor of law, University of Utah) & Benjamin Machlis (J.D. Candidate, University of Utah) have recently published their article entitled Amending and Terminating Perpetual Conservation Easements, Prob. & Prop., July/Aug. 2009, at 53.

The following is the introduction to the article:

Over the past several decades, landowners have donated perpetual conservation easements encumbering millions of acres to government entities and to charitable conservation organization known as land trusts. Landowners make these charitable gifts for a number of reasons, including a desire to ensure the permanent protection of their land and to take advantage of tax benefits.

Until fairly recently, little consideration has been given to precisely what it means to protect land "in perpetuity" with a conservation easement. But as perpetual conservation easements have begun to age, and the protected lands have begun to change hands, questions have arisen regarding the circumstances under which these instruments can be amended or terminated.

This article outlines the current guidance on this issue and offers some drafting suggestions. Because of space constraints, it focuses on perpetual conservation easements donated to land trusts or state and local government entities, in whole or in part, as charitable gifts and for which the donor claims or could claim tax benefits (tax-deductible conservation easements). This article is not intended to imply that conservation easements conveyed in other contexts will not be subject to the same or similar equitable principles.