Tag: conservation easements

Perpetuity Is Forever, Almost Always: Why It Is Wrong To Promote Amendment and Termination of Perpetual Conservation Easements

By Ann T. Schwing

When a landowner makes a charitable gift of a conservation easement to a nonprofit organization or government entity and elects to seek a federal tax deduction, both landowner and easement holder are subject to federal tax laws and regulations governing the creation, monitoring, amendment, and extinguishment of the easement. A nonprofit easement holder is subject to federal laws governing nonprofit operations. The nonprofit and government holders are also subject to state laws governing the operations of nonprofit organizations and the administration of charitable and other public assets on behalf of the public. All of these laws affect and restrict the ability of nonprofit and government holders to amend and terminate perpetual conservation easements. Contrary to representations made in When Perpetual Is Not Forever: The Challenge of Changing Conditions, Amendment, and Termination of Conservation Easements, 36 Harv. Envtl. L. Rev. 1 (2012), none of these laws can be ignored.

Cite as: Ann T. Schwing, Perpetuity Is Forever, Almost Always: Why It Is Wrong To Promote Amendment and Termination of Perpetual Conservation Easements, 37 Harv. Envtl. L. Rev. 217 (2013).

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Understanding When Perpetual Is Not Forever: An Update to The Challenge and Response to Ann Taylor Schwing

By Jessica E. Jay

Rarely in the legal discourse is an author afforded the opportunity to revisit and update a recently published law review article and to correct misunderstandings of a response thereto. When Perpetual Is Not Forever: The Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements explores the area of law surrounding the amendment and termination of perpetual conservation easements, with specific focus on the existing legal framework, legal regimes, emerging statutory and common law, and states’ approaches to self-guidance. The Challenge identifies next steps and options for perpetual easement modification and termination guidance, including revisions of the Treasury Regulations § 1.170A-14. The Challenge posits that providing clear, consistent guidance through existing or new legal frameworks ensures that perpetual conservation easements and the purposes they protect will endure over time. This Article informs about developments since the publication of The Challenge and corrects misunderstandings asserted in Ann Taylor Schwing’s Perpetuity Is Forever, Almost Always: Why It Is Wrong To Promote Amendment and Termination of Perpetual Conservation Easements in this issue of the Harvard Environmental Law Review.

Cite as: Jessica E. Jay, Understanding When Perpetual Is Not Forever : An Update to the Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, and Response to Ann Taylor Schwing, 37 Harv. Envtl. L. Rev. 247 (2013).

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When Perpetual is Not Forever: The Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements

By Jessica E. Jay

As the use of perpetual conservation easements to protect private property for the public’s benefit grows in popularity, so grow the challenges associated with these perpetually binding promises. Today’s conservation community faces significant challenges to amending and terminating perpetual conservation easements in the face of changing conditions, landscapes, climate, and public interests. Because of variations among different legal regimes’ guidance for perpetual conservation easements, much remains unsettled regarding perpetual conservation easement amendment and termination. This Article examines inconsistencies in the legal regimes and explores current and emerging common law, legislation, and policies addressing perpetual easement amendment and termination. This Article posits that the conservation community can protect the integrity of perpetual conservation easements by providing clear, consistent guidance through existing or new legal frameworks for state legislatures, courts, landowners, and easement holders, and suggests the means to achieve or craft such guidance.

Cite as: Jessica E. Jay, When Perpetual is Not Forever: The Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, 36 Harv. Envtl. L. Rev. 1 (2012).

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Notional Generosity: Explaining Charitable Donors’ High Willingness To Part with Conservation Easements

By Josh Eagle

Data on the average value of donated conservation easements reveal that donors are, on the surface, exceptionally generous in making gifts of easements. The only plausible explanation for these data is that donors’ incentive to donate is strongly linked to their subjective valuation of the costs of donating. Donating a dollar’s worth of easement is a much better deal than donating a dollar.

While it may be true that the public receives a benefit from easement donations, it also appears true that donors could be persuaded to donate for a much lower amount of tax benefit. In the absence of a market transaction,
there will never be accurate information on the price that the public ought to be paying. Overpaying for easements wastes public dollars that could otherwise be used for additional conservation.

While the exact amount of overpayment is unknown, there is no debating the fact that allowing deductions for easement donations provides inverse incentives to landowners. As between a landowner who is interested in developing his property and one who is not, the latter has a greater incentive to donate because his parting costs will be lower. Many years down the road, it may turn out that, when he made the donation, the donor underestimated the likelihood that he would later be interested in developing. In such cases, it is possible that the public will have made a good deal despite initially overpaying for the easement. However, the possibility that landowners will make such mistakes neither represents good policy nor is enough to justify the entire Section 170(h) program.

Cite as: Josh Eagle, Notional Generosity: Explaining Charitable Donors’ High Willingness To Part with Conservation Easements, 35 Harv. Envtl. L. Rev. 47 (2011).

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