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Conservation Easements and the Doctrine of Changed Circumstances

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Conservation Easements and the Doctrine of Changed Circumstances LAND TRUST ALLIANCE Exchange Law Update Restatement of the Law: Conservation Easements and the Doctrine of Changed Circumstances by William M. Silberstein and Jessica E. Jay An influential publication by the interest in the land. (Examples could ognize the applicability of the doctrine American Law Institute, Restatement of include homeowners association of changed circumstances and the the Law Third—Property (Servitudes)— covenants or rights-of-way for a drive- possibility of termination. published in 2000, recognizes that per- way on a neighboring property.) The Restatement provides that manent conservation easements can This is the first in a two-part series a conservation servitude held by a only be terminated in very unusual examining the Restatement’s treatment governmental body or conservation circumstances and makes other impor- of conservation and preservation ease- organization may not be modified or tant distinctions between conservation ments. This article will address con- terminated because of changes that easements and other servitudes. servation and preservation easements have taken place since its creation The American Law Institute’s series and the doctrine of changed circum- [Section 7.11]. Only in circumstances of Restatements of the Law presents stances and termination. The second where the particular purpose for discussions on various topics treated article will describe the Restatement’s which a servitude is created becomes under common law (based on tradi- findings with regard to enforcement impracticable may the servitude be tional legal principals and precedents), and defense of conservation and modified to permit its use for other as well as laws enacted by the U.S. preservation easements. purposes (unless otherwise provided Congress and state legislatures. The by the document that created the American Law Institute is an organi- The Doctrine of Changed servitude), or, if the servitude can zation of judges and attorneys formed Circumstances no longer be used to accomplish any in 1923 for “the clarification and sim- Although servitudes usually last conservation purpose, it may be ter- plification of the law and its better for a fixed period of time—so long as minated. The common law rule of cy adaptation to social needs.” Its publi- the necessity giving rise to it lasts, or pres provides that the intention of the cations are often relied on by judges, as long as the life of the person hold- parties should be carried out as close- particularly when they are called upon ing the benefit or burden, for exam- ly as possible, even if the legal docu- to make decisions in areas where court ple—the drafters of the Restatement ment cannot be followed to the letter, case precedent is lacking—such as recognize that conservation and due to changed conditions. conservation easements. preservation easements must be The drafters make clear that changes The Restatement of the Law Third, perpetual in order to meet the qualifi- in the value of the eased estate, as a Property (Servitudes) discusses in cations and receive tax and other result, for example, of surrounding detail the law of what it terms conser- benefits provided by the statutes development, are not changed condi- vation and preservation servitudes— authorizing the creation of servitudes tions that permit modification or ter- conservation and facade easements. A for historic preservation, agricultural mination of a conservation servitude servitude is a generic term that describes preservation, open space or other con- [Section 7.11]. legal devices private parties use to servation purposes. While the drafters The Restatement notes that conser- create rights and obligations that “run of the Restatement recognize the per- vation servitudes are afforded more with the land,” passing to successive petual element of conservation and stringent protection than other servi- owners or occupiers of the land or the preservation servitudes, they also rec- tudes because there is strong public Winter 2001 29 Exchange LAND TRUST ALLIANCE interest in conservation and preserva- servation easements are much more Because widespread use of conser- tion. In addition to the statutory difficult to terminate than other types vation servitudes dates only from the requirements that they be perpetual, of servitudes. Likewise, the termina- 1970s, no reported appellate opinions “conservation and preservation servi- tion of a conservation servitude is have modified or terminated a conser- tudes will continue to increase in likely to incur a higher penalty than vation or preservation servitude due importance as population growth exerts the termination of other types of to changed conditions, the Restatement ever greater pressure on undeveloped servitudes. When changed conditions notes. However, the drafters support land, ecosystems, and wildlife,” the lead to termination of servitudes, par- their positions with the growing body Restatement notes. ticularly in residential subdivisions, of literature on the subject as well as However, the drafters recognize it there is seldom an entitlement to with the many state statutes in place. is inevitable that, over time, changes damages. However, with conservation As the Restatement makes clear, the will make it impracticable or impossi- easements, the opposite is true. basis for exemption of conservation and ble for some conservation servitudes There are two reasons for this dif- preservation servitudes from traditional to accomplish their purpose. In this ference. The first is a difference in the rules of servitudes lies in their impor- instance, the Restatement advises that likely expectations of the parties to the tance to society. The drafters’ recogni- if no conservation or preservation servitudes. Servitudes are terminated tion and treatment of conservation purpose can be served by continuance when it would be unfair to continue to and preservation easements helps to of the servitude, the public interest enforce them. People who buy proper- strengthen their legal standing. P requires that courts have the power to ties subject to homeowners’ covenants terminate the servitude so that some in residential developments generally William M. Silberstein and Jessica E. other productive use may be made of do not foresee the changes that could Jay are attorneys with Isaacson, the land. However, the drafters also ultimately result in termination of a Rosenbaum, Woods & Levy, P.C. in emphasize that, pursuant to the cy pres servitude. By contrast, conservation Denver, CO. E-mail them at: doctrine, if the particular purpose for servitudes usually are made on the [email protected] and [email protected]. which the servitude was created can premise that there will be a change in no longer be accomplished but the circumstances, and that legally enforce- servitude is adaptable for other con- able measures are necessary to pre- For More Information servation or preservation purposes, vent undesired changes on the eased For more information on the the servitude should be continued land, even as surrounding properties American Law Institute or the for those other purposes, unless the continue to change in use. Second, the Restatement of the Law– Property document that created the servitude drafters again point to the strong public (Servitudes), see the organization’s provides otherwise. interest in the continued existence of Web site: www.ali.org. (The two-vol- property devoted to conservation pur- ume Restatement is for sale on the Termination of Servitudes poses and the need to protect the pub- site for $195.) The Restatement specifies that con- lic investment made in such properties. Defining “Conservation Servitudes” Conservation easements are given special treatment in the Restatement of the Law—Property (Servitudes). The drafters went to great lengths to define and distinguish “conservation servitudes” and “conservation organizations” [Section 1.6]: A “conservation servitude” is a servitude created for conservation or preservation purposes. Conservation purpos- es include retaining or protecting the natural scenic or open space value of land, assuring the availability of land for agricultural, forest, recreational, or open space use, protecting natural resources including plant and wildlife habitat and ecosystems, and maintaining or enhancing air or water quality or supply. Preservation purposes include preserving the historical, architectural, archeological, or cultural aspects of the real property. A “conserva- tion organization” is a charitable corporation, charitable association, or charitable trust whose purposes or powers include conservation or preservation purposes. 30 Winter 2001.
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