Visitors to conserved properties should only leave footprints and take photos – but they might also injure themselves. Third party injuries stemming from real property are usually covered by homeowners or general liability insurance (Terrafirma doesn’t cover personal injury matters). Plaintiffs’ attorneys have tried to hold land trusts liable in personal injury lawsuits by virtue of the parcel’s conservation easement where the injury occurred. Some courts are not initially dismissing the land trust as a party from the litigation, often citing the easement’s monitoring and enforcement requirements as possible factual situations where the land trust could have liability. Whether this argument is ultimately successful or not, that doesn’t stop the land trust from having to defend themselves and incur legal costs.

Here are some best practices to keep in mind to help defend your land trust:

1. Have a general liability insurance policy;
2. Understand your state’s reactional activity liability, premise liability and assumption of risk laws and incorporate strategies into your land trust’s risk management plan to shield and reduce your liability exposures;
3. Have appropriate contractual and insurance coverage requirements when you have third parties involved with conserved parcels and any fixtures or improvements therein;
4. Include hold harmless and indemnification provisions as well as other appropriate contractual provisions in agreements; 
5. Have clear and explicit provisions about the landowner’s and/or other co-holder’s maintenance, upkeep, monitoring and reporting rights and responsibilities in agreements, especially as to hazards.
6. Land Trust Alliance resources:
   • Protecting Board Members from Liability
   • Developing a Risk Management Plan
   • Checklist for Managing Contractual Risks
   • Commonly Purchased Insurance
   • Practice 6E: Risk Management and Insurance

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