Subject: [LT] Easement Question about "Grantor's Remedies"

Sent: Wednesday, December 26, 2007 5:43 PM
To: LANDTRUST-L@LISTSERV.INDIANA.EDU
Subject: [LT] Easement Question about "Grantor's Remedies"

At the 11th hour as we're about to sign two very large easements, the very conservation-minded easement donor who had a bad experience with an east coast governmental Grantee asked:

"Just what are the donor's rights if the land trust is not meeting its obligations to monitor, enforce, etc.? Does she have the right to go to court to request transfer of the easement to a different grantee?" Now as I read our sections on Dispute Resolution, Grantee'e Remedies, Transfer, Assignment and Succession sections, it does seem to me that from a simple contractual standpoint Grantor has a strong legal arguments to either force "enforcement" or to have the Grantee organization changed.

Have any of you ever had to deal with a situation where the Grantor brought action due to a lackluster Grantee, and/or have any of you included specific "Grantor's Remedies" sections in an easement?

Thanks for the insight.
And best for the remaining holidays.

Dale
Dale B. Bonar, Ph.D.        
Maui Coastal Land Trust          
POB 965                                       
Wailuku, Maui, HI 96793            
808-244-5263
808-357-7740 (cell)
dale@mauicoastallandtrust.org
www.mauicoastallandtrust.org
 

Date: Thu, 27 Dec 2007 09:32:22 -0500
From: lrbeach@LTA.ORG
Subject: Re: [LT] Easement Question about "Grantor's Remedies"
To: LANDTRUST-L@LISTSERV.INDIANA.EDU

Seasons Greetings Dale and other listserv members --

Jesse, Jeff, Sylvia and Frederick all offered very good suggestions in my opinion. I'd like to add two points.

First, if you have not already, look at the 2005 edition of the Conservation Easement Handbook by Karin Marchetti Ponte and Elizabeth Byers. They address your point explicitly and offer some clauses that address your concerns as well as the issues pointed out by the others. The clauses should address the landowner's concerns as well. See pages 380, clause 16A and 16B as well as the commentary on those clauses at page 472. You should discuss the implications of these sample clauses with your attorney before using them.

Second, my personal experience as an attorney for the Vermont Land Trust in negotiating these "boilerplate" clauses with landowners and landowners' attorneys is that they have a few specific fears in mind. I'd take the time to listen to them carefully, ask many questions so that I was sure I understood the issues, and then I'd write what we called a "side letter". In that side letter in plain English I'd elaborate on the land trust's interpretation of the clause in question, the land trust practice on implementing the clause and the land trust overall philosophy of stewardship and landowner relationships and how that related to our mission. I'd be sure to specifically address their concerns.

This letter would become a permanent part of the record for that property as an "interpretation" letter. I found that usually this allayed the fears. In my almost 13 years at VLT working with over 1400 conservation easements, I only had this method not succeed once.

Naturally, you must exercise great care in writing the letter and your attorney should be directly and actively involved in crafting the letter.

Best of luck with your year end closing. Please let us know what you and your attorney decide to do.

Leslie
Leslie Ratley-Beach
Conservation Defense Director
Land Trust Alliance
44 Deerfield Drive
Montpelier, VT 05602
802-262-6051 phone and fax
lrbeach@lta.org
www.lta.org
Together, conserving the places you love.
 

Sent: Thursday, December 27, 2007 7:15 AM
To: LANDTRUST-L@LISTSERV.INDIANA.EDU
Subject: Re: [LT] Easement Question about "Grantor's Remedies"

As always, Leslie, your information is great.  Might you have an example of such a letter (with identifying information removed, of course) for Dale and others to look at?  

I had written Dale off line for other reasons and did suggest to him (asiode from the potential abiliyt of the AG to get involved) that state law may enable the donor to go into court, though, as Jeff states, the case law is sparse to non-existent.  I think it may be possible to get the court's attention if the organization has completely dropped the ball, warranting an "affirmative" restraining order or injunction - i.e., where the court orders the organization to take steps to come in line with its stewardship responsibilities.   In order to do so, the donor could face difficulties under state law with standing issues.  And it would be incumbent upon the donor to show that (1) there is a reasonable likelihood of succeeding on the merits of the case if it goes to trial, (2) the donor will suffer irreparable harm if an injunction is not granted, (3) the harm that the donor will suffer outweighs the harm to the organization that is allegedly failing to meet up to its easement responsibilties, and (4) the public interest will not be adversely affected if the injunction is denied.

This type of action won't bode well for either party, will likely be long and expensive if not settled upon the issuance of an injunction and may do a lot of damage to the goodwill of both parties.  Bob

Robert A. Levite, Esq.

A side letter may work in some circumstances, but it would not bind future owners of the land (unless recorded).  Depending on the nature of the donor's concerns, a side letter may be insufficient.  At the very least, a land trust should take care not to assure the donor that the side letter is enforceable against future owners.  

A second danger presented by a side letter is that it is likely to create additional contract terms between the donor and land trust that could be enforced against the land trust by the donor and potentially by the donor's heirs.  Calling it a letter may reduce the care with which it is drafted and may give rise to obligations that were never intended (or approved by the land trust board).  At the very least, any such letter should be carefully reviewed by a land trust attorney whose focus is on protecting the land trust and not on facilitating the closing of the conservation easement.
Leslie was acting as land trust attorney and undoubtedly aware of these concerns, but it's important for land trust staff not to assume that they can solve bumps in the easement negotiations with side letters without consulting the land trust attorney and considering the consequences.

Ann Taylor Schwing
Trustee, The Land Trust of Napa County (www.napalandtrust.org)
Trustee, American Inns of Court Foundation (www.innsofcourt.org)
Of counsel, McDonough Holland & Allen PC (www.mhalaw.com)
Author, Open Meeting Laws 2d (www.openmeetinglaws.com)
 

Date: Sat, 29 Dec 2007 12:54:58 -0500
From: connie small <connie@STEVESMALL.COM>
Subject: Re: [LT] Easement Question about "Grantor's Remedies"
To: LANDTRUST-L@LISTSERV.INDIANA.EDU

(from steve small) I would also note this provision (from a recent easement), typical of most, re the impact of any "side" agreement.  5.14 is the Amendment provision.  Happy holidays to all. SJS

5.23     Entire Agreement.  This instrument sets forth the entire agreement of the parties with respect to the Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged herein.  No alteration or variation of this instrument shall be valid or binding unless contained in an amendment that complies with Section 5.14. 

December 30, 2008

Something the proponents of CEs seem to forget, or have never learned (and too often this applies to some so-called advocates for the right of property), is the fact a CE is a contract which, by its peculiar nature, is a contradiction in terms; that is, a contradiction of one of the basic reasons parties agree to enter into a contract: certainty, or the elimination of uncertainty, to the greatest extent possible.

It is the concept of contractual certainty, inherent in our common law system dealing with relationships between men and their property, which has allowed and encouraged the amazing advances of American individualism, ingenuity, arts, science and industry.

The CE 'contract' is filled with legal and social uncertainty of collectivism where private rights of property are not, and can not be clearly defined, and where the only certainty is interference by the state through its third-party surrogates on behalf of "the public interest."
Leo Schwartz

Good Neighbor Committee
P.O. Box 155 - La Salle, CO  80645
info@goodneighborlaw.com

| Good Neighbor Law© 2006 |