1 / 14

Enforcing Covenants

Enforcing Covenants. Craig Lee Vice President The Trust For Public Land. TPL and Covenants . 150 covenants, 2,500 transactions totaling 300,000 acres Helped establish over 150 land trusts during the 1980’s and 90’s Co-authored the “Conservation Easement Handbook”

nayef
Download Presentation

Enforcing Covenants

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Enforcing Covenants Craig Lee Vice President The Trust For Public Land

  2. TPL and Covenants • 150 covenants, 2,500 transactions totaling 300,000 acres • Helped establish over 150 land trusts during the 1980’s and 90’s • Co-authored the “Conservation Easement Handbook” • Increased use of Covenants in past 7 years

  3. Why Enforce Covenants • Elements of Covenant Stewardship • Legal Responsibility • Helps Maintain Land Trust’s legal authority to enforce • Engenders public confidence in your Covenant Program

  4. LTA’s Survey on Covenant Violations • LTA’s US 1999 Conservation Easement Study surveyed 175 local and regional land trusts out of 1,300 (2 million acres total), 7,400 CES • 7% have experienced violations

  5. LTA’s Survey ~ Key Findings • 500 violations were reported • 383 of which were considered minor • 115 violations required significant amount of the trust’s resources for resolution • 21 cases involved lawsuits • In each of these cases, the violator was not the original landowner • Prohibited surface alterations was the most common major violation • Leveling ground for roads • Digging drainage ditches • Cutting vegetation and Construction of prohibited structures are also frequent violations

  6. Most Frequent Violations in LTA’s Study

  7. Costs in Resolving Violations • Major easement violations ranged $100,000 to $100 • Average cost for major violations was $10,000 • Staff costs from $100 - $28,000 • Associated costs range from $100 - $4,000 • Litigated violations costs $5,000 to $100,000 • Average of $35,000

  8. Prepare for the Next Generation • Risk of violation increases when covenants are transferred to 2nd generation landowner • In litigation cases • All were monitored, most annually • Landowner was aware of the terms of the covenant

  9. Making Policy Changes

  10. Recommendations for Better Enforcement • Covenants must be carefully and clearly drafted • Have policies and procedures in place before a violation occurs • Regular, structured monitoring is essential, and contact with the landowner during monitoring visits is recommended • Good landowner and community relations are critical • Land trusts should have the financial resources to monitor, enforce and defend easements against violations • Land trusts should consult experienced legal counsel as soon as a violation is discovered or suspected

  11. Lessons from the Whidbey Island Violation • Though easement was sound, relationship with 2d generation owner was tenuous • Survey the building envelope • Keep diligent records of visits; put it in writing; operate more business-like • Informality of relationship between land trust and land owner hurt LT’s case in court • Find the right personality combination between your board and the owner • “Equitable Relief” – to relocate the foundation, land trust was denied this but got the screening remediation • Decision not to appeal the ruling– because LT negotiated a favorable remediation plan with the owner (vegetative screening) and the court costs were prohibitive ($15k for the lower court proceedings alone)

  12. Stewardship Endowment • How to set an amount • Who pays?

More Related