enforcing covenants
DESCRIPTION
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” - PowerPoint PPT PresentationTRANSCRIPT
© 2002 The Trust for Public Land
Home Regions Programs Staff Details Appendix
Conserving Land for People
Enforcing CovenantsEnforcing Covenants
Craig Lee
Vice President
The Trust For Public Land
2© 2002 The Trust for Public Land
Conserving Land for
People
3© 2002 The Trust for Public Land
Conserving Land for
People
TPL and CovenantsTPL 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
4© 2002 The Trust for Public Land
Conserving Land for
People
Why Enforce Covenants 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
5© 2002 The Trust for Public Land
Conserving Land for
People
LTA’s Survey on Covenant ViolationsLTA’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
6© 2002 The Trust for Public Land
Conserving Land for
People
LTA’s Survey ~ Key FindingsLTA’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
7© 2002 The Trust for Public Land
Conserving Land for
People
Most Frequent Violations in LTA’s StudyMost Frequent Violations in LTA’s Study
0
5
10
15
20
25
30
35
1st Qtr
Surface alteration
Cutting vegetaton
Prohibited structures
Timber harvest
Alteration ofwetlands/watercoursesCommercial activity
Dumping of waste
Subdivision
8© 2002 The Trust for Public Land
Conserving Land for
People
Costs in Resolving ViolationsCosts 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
9© 2002 The Trust for Public Land
Conserving Land for
People
Prepare for the Next Generation 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
10© 2002 The Trust for Public Land
Conserving Land for
People
Making Policy ChangesMaking Policy Changes
Clarify easement documentsImprove landowner communicationsStrengthen monitoring standardsCreate/ improve easement acquisition policiesCreate violation policy/resolution proceduresCreate amendment policy
11© 2002 The Trust for Public Land
Conserving Land for
People
Recommendations for Better EnforcementRecommendations 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
12© 2002 The Trust for Public Land
Conserving Land for
People
Lessons from the Whidbey Island ViolationLessons 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)
13© 2002 The Trust for Public Land
Conserving Land for
People
Stewardship EndowmentStewardship Endowment
• How to set an amount
• Who pays?
14© 2002 The Trust for Public Land
Conserving Land for
People