Conservation Easement Amendments: Navigating Amendment Mechanisms, Overcoming Challenges and the Lack of an Amendment Provision

Recording of a 90-minute CLE webinar with Q&A


Conducted on Wednesday, September 21, 2016

Recorded event now available

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Program Materials

This CLE webinar will examine conservation easement amendments and the legal and practical issues that must be considered when assessing a proposed amendment to a perpetual conservation easement or developing a policy to govern an organization’s approach to amendments. The panel will also discuss recent developments and state attorney general involvement in amendments.

Description

With almost 40 million acres of land in the U.S. protected by perpetual conservation easements, some amendments may be desirable or necessary to clarify language, correct errors, add provisions to strengthen the easement, or accommodate conservation beneficial activities (e.g. wetlands restoration, wildlife enhancement). However, amendments are also subject to abuse and can be used to, for example, sanction violations; effectively terminate conservation easements in whole or in part; or make a changes that are contrary to the conservation purpose of the easement, the public interest, or the intent of the grantor. Absent rigorous safeguards, easement protections are at serious risk of erosion over time. As easement-encumbered land change hands, new owners who lack the same level of commitment to conservation as the original land owner and who stand to profit from lifting restrictions from the land may pressure holders to modify or even terminate easements in whole or in part.

Legal guidance on conservation easement amendments remains unsettled and a variety of laws can impact amendments, including state statutes authorizing the creation of conservation easements (easement “enabling” statutes), state laws authorizing state easement purchase programs, state laws authorizing state tax benefits for easement donations, state real property and contract laws, state laws governing the operations of charitable organizations, state laws governing the administration of charitable gifts, federal laws authorizing federal tax benefits for easement donations, federal laws authorizing federal easement purchase programs, and federal laws governing the tax-exempt status of charitable organizations.

Listen as our authoritative panel of practitioners discusses the need and purpose of conservation easement amendments and then examines the mechanisms for properly making amendments and offers strategies for which do not contain an amendment provision. The panel will also discuss the challenges facing counsel and the impact of the IRS position regarding amendments.

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Outline

  1. Need and purpose for amendments
  2. Mechanisms for making amendments
  3. Strategies when conservation easement does not contain amendment provision
  4. Challenges and Issues
    1. Varying state positions
  5. Amendment policy
  6. Impact of IRS

Benefits

The panel will review these and other key issues:

  • What are the laws that must be considered and the principles that should guide conservation easement amendments?
  • What are the potential consequences of amending a conservation easement that counsel should consider before recommending that an organization agree to an amendment?
  • How might the traditional approach to amendments and the traditional “standard” amendment clause be improved to minimize abuses and ensure protection of the public interest and investment in conservation easements?

Faculty

McHenry, Thomas J.P.
Thomas J. P. McHenry

Partner
Gibson Dunn & Crutcher

Mr. McHenry practices general environmental law with an emphasis on air quality, hazardous waste, environmental...  |  Read More

Professor Nancy A. McLaughlin
Professor Nancy A. McLaughlin

University of Utah College of Law

Professor McLaughlin (J.D. University of Virginia) is the Robert W. Swenson Professor of Law. She is a member of...  |  Read More

Ann Schwing
Ann Schwing

Of Counsel
Best Best & Krieger

Ms. Schwing has served on the Land Trust Accreditation Commission since its creation in 2006. She serves on the Board...  |  Read More

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