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Conservation Easement Enabling Statutes

Overview from the report:

This report presents a comprehensive overview of state conservation easement enabling statutes, understood in the context of other state and federal laws that may apply on any given issue. It does not attempt to explore all the laws that affect conservation easements, but rather serves as a guided tour of enabling statutes, with discussion about potential areas that individual states may want to consider for legislative clarification. Conservationists should be mindful of how enabling statutes interact with other laws as they evaluate whether to propose legislation to amend their enabling act. By looking at what other states include and omit, interested parties can evaluate the risks and benefits of various approaches to conservation easement enabling acts.

The main body of the text provides a discussion of the key issues addressed (or not addressed) by such statutes. This report gives particular attention to amendment, termination and legal standing to enforce. Most statutes are silent or refer to “other law” on these issues, creating the potential for ambiguity. A handful of states are discussed in detail as noteworthy exceptions.

No enabling statute purports to repeal or otherwise supplant other applicable state or federal law, such as the laws governing nonprofit management and the administration of charitable gifts and charitable trusts. To the extent that the enabling act and other applicable laws analyzed together do not provide complete or clear answers to the more sophisticated questions facing conservationists today, then land trusts and their advisors may wish to consider appropriate legislation addressing these issues.

Appendix A provides a chart for a quick comparison of the various statutes on a dozen key factors. Appendix B sets forth the highlights of each state’s statute. Appendix C enumerates several provisions that might be considered as part of any comprehensive amendment to an enabling statute. Appendix D is a copy of the Uniform Conservation Easement Act, along with the Official Comments.

This guided tour of conservation easement enabling statutes is not legal advice and is not intended to be used as legal advice.

Written by Robert H. Levin, Esq. under contract with the Land Trust Alliance. E-mail the author at: rob [at] roblevin.net; e-mail Leslie Ratley Beach, conservation defense director at the Land Trust Alliance: LRBeach [at] lta.org


A Guided Tour of the Conservation Easement Enabling Statutes (447 KB)

Appendix A - Conservation Easement Enabling Legislation Comparison Chart as of January 2009 (20 KB)

Appendix B - State-By-State Summary of Enabling Statutes and Related Case Law as of January 2009 (317 KB)

Appendix C - Checklist of Useful Statutory Provisions (66 KB)

Download entire report (640 KB)

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Advocates Alerts

July 17: The House just voted 277-130 to pass the charities package! 56 Democrats joined their Republican colleagues to support charitable giving incentives, including the enhanced easement incentive - the second-highest number of defections after the research and development tax credit. Several others spoke on the floor in support of the conservation easement incentive, and other favorable charitable incentives. Thank you to organizations like Ducks Unlimited, CSF and others that reached out to Congressional offices over the last few days or alerted their membership of this important vote. Now, we pivot to the Senate.
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