Plaintiffs and defendants continue to invoke creative arguments to hold land trusts liable and excuse violations to conserved land. Whether these arguments are ultimately successful or not, that doesn’t stop the land trust from having to defend themselves and incur costs. 

Landowners and neighbors like to tactically point their finger back at the land trust’s board and/or staff when land trusts enforce conservation purposes. Here are some examples used to excuse or permit the conservation threat: the land trust was negligent in carrying out its responsibilities; the land trust failed to follow its own policies and procedures; or the land trust affirmatively or passively assented. These are becoming more common counter claims in litigation and may trigger coverage under your land trust’s directors and officers’ insurance policy. 

While it’s difficult to prevent these allegations from being asserted in the first place, here are some best practices to keep in mind to help defend yourself: 

• Land trusts should have and follow their own record keeping procedures and practices.
• Include anti-waiver/no estoppel provisions within agreements.
• Have formal procedures for how they handle and respond to requests to modify conservation easements, in particular, specify who and by what means such approval must come from to be valid and effective.
• Best Practices for Complete Stewardship Documentation.

We’re here to help! If you have any questions, please let us know.