How are Infractions Against Easements Handled?

How are Infractions Against Easements Handled?

Conservation easements generally exist in perpetuity, therefore there may be infractions against one or more of the restrictions over time. The history of conservation easements has shown infractions (also referred to as infringements) or challenges generally do not occur with the first or even second landowner, but rather with subsequent ones. If restrictions in the easement agreement are breached, there may be legal actions.

Infractions may be the result of a landowner not understanding a restriction or simply not knowing the restriction exists. In other cases, the landowner may not agree with the restriction and take an action to challenge the restriction. The best way to avoid infractions is through the development of good relationships between the grantor (landowner) and the grantee (conservation organization), with transparency and trust as foundations for clear understanding of restrictions and options for amendments to the conditions of the CE.

Regardless of the reason an infraction occurs, each conservation easement document should describe how to deal with infractions. When there is a conflict, the CE holder and the landowner generally agree to make a reasonable effort to resolve the problem together. If the conflict cannot be resolved through this collaborative effort, then the parties usually opt for mediation process, and beyond that a binding arbitration process. In the most severe cases, the parties may end up in a lawsuit.
In cases where the infraction – or pending infraction – has serious and immediate potential to harm the land, the CE holder may seek legal remedies such as an injunction.

All conservation easements should include a clause that states if one or more of the restrictions is not upheld, the rest of the easement is still valid and in force. This means even if one restriction is either abandoned (as a result of the process described above) or not enforced by the CE holder for some reason, the conservation easement continues to be in force.