TerraBites
A short newsletter of bite-size ideas to chew on for Terrafirma owner-member land trusts, released January, February, May, June, September, October and November.
Over the past year, Terrafirma has seen an increase in boundary-related claims like encroachment, trespass and adverse possession. Two recurring themes are that the land trust suspected the violation was occurring for years but had not verified the property boundary line or thought the nominal trespass did not merit filing a Terrafirma claim. Many of these claims, unfortunately, were denied coverage due to being untimely filed. Some of the problems could have been stopped or abated earlier if the land trust identified the boundary lines and acted promptly.
Terrafirma offers practical considerations for land trusts during monitoring visits to help you identify boundary issues.
Please contact Leslie Ratley-Beach if you have questions about boundary-related matters.
Sincerely,
Tom Kester
Operations Manager and Secretary
Alliance Risk Management Services LLC
Manager for Terrafirma Risk Retention Group LLC
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“...I am considering the option of suing the Land Trust for an injunction to remove those trees as a nuisance, interfering with my view. If successful, I would set a precedent and if unsuccessful, I will cost the [Land Trust] a great deal.”
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That was part of the response a land trust received after informing a neighbor they were prohibited from cutting trees on the land trust’s preserve. Neighbors like this think only of their view. The chainsaws (or bulldozers) are not stopped by the deed description. Luckily for this land trust they are a Terrafirma member and had insured their preserves. Terrafirma covered this claim helping the land trust to prevail in court and recover costs and damages.
Unfortunately, the disputes Terrafirma sees demonstrate that preserves face serious expensive legal issues from deliberate tree cutting, bulldozing and the construction of various structures by neighbors – and at relatively the same rates as conservation easements.
About 61% of Terrafirma’s member land trusts insure both easements and preserves. If your land trust has not yet insured its preserves (or easements) with Terrafirma please consider doing so for 2023. I hope you join the crowd in the risk pool. Terrafirma can help ensure that your preserves are preserved.
Please contact me (tkester[at]lta.org) if you are interested in learning how to insure your land trust’s preserves. You might be surprised at the number of parcels that can be counted as one preserve!
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Tom Kester
Operations Manager
Alliance Risk Management Services LLC
I hope you are well and enjoying spring. I wanted to give all Terrafirma members ample notice that after five full years of stable premium prices and also retaining all the original discounts, Terrafirma must increase premium for the next policy year in 2023. This is only the second premium increase in Terrafirma’s ten years of operation.
Like everyone, inflation has increased all of Terrafirma’s costs – some of them dramatically. Attorney costs on claims increased 15% for example, and investment market decreases negatively affected additional income that would otherwise bridge expense increases.
Terrafirma’s elected Members Committee wants to ensure that Terrafirma can pay the costs for every covered claim, provide members with access to highly qualified attorneys nationwide, and provide sufficient management of Terrafirma to meet regulatory expectations.
At the recent Terrafirma Annual Meeting, the Members Committee voted to increase Terrafirma’s premium from $63 per insured parcel to $67 per insured parcel effective for policy year 2023 (next year). Current premium discounts and coverage limits remain the same.
We understand that any premium increase is not welcome news to members. Both Terrafirma and ARMS work very hard to keep costs as low as possible. The two premium increases in Terrafirma’s 10-year history represents an annualized 1.1% increase from the original 2013 premium. All the discounts and original policy limits remain the same.
I am happy to answer any questions. Please write to me at tkester[at]lta.org. Thank you for your dedication to lasting conservation!
Sincerely,
Tom Kester
Operations Manager
Alliance Risk Management Services LLC
The 545 land trust owner-members of Terrafirma mark some notable events this month. They now collectively insure over 10,212,198 acres. That is 38% more than when the Alliance started Terrafirma in 2013, and one and a half times the size of Hawaii! Terrafirma has also paid out $4.5 million for covered claims, handled over 1,500 claims and insured over 36,000 conservation properties. Terrafirma has almost $12 million in total assets and is fully compliant with regulations.
February 22, 2022 also marks the 40th anniversary of the Land Trust Alliance. In honor of all of these collective achievements, the Alliance will host two complimentary webinars as part of Member Celebration Week for land trust members and Affiliates — Transforming Your Organizational Culture on Feb. 23 and Staying Connected While Working Remotely on Feb. 24.
Thank you to all the owner-members of Terrafirma for helping us to grow stronger each year! Each land trust is a critical part of this formidable, shared conservation defense liability service. We appreciate your commitment to lasting conservation.
Hannah
Hannah Flake
Conservation Defense Specialist
ALLIANCE RISK MANAGEMENT SERVICES LLC
P.S. Stay on top of any potential claims you have lingering from the 2021 policy period by filing a claim before the end of the grace period on April 30 - the sooner the better. If you have questions about filing a claim or anything else, please let us know.
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Terrafirma is seeing an increase in extinguishment demands by successor owners and third parties. These extinguishment demands are often based on bad faith allegations of hardship, negligence or deceptive practices.
We are also seeing these demands increase because of changes to the land resulting from extreme and unusual weather. They use this as an excuse to attempt to eliminate conservation easements and even to justify trespassing on preserves. The Land Trust Alliance recently published two new Practical Pointers to help land trusts adapt to changing conditions when drafting easements and when administering all conservation holdings.
Here are some additional risk mitigation steps that your land trust can take:
- Ensure that you have ample insurance coverage (Terrafirma, title, general liability and directors and officers).
- Carry out community outreach so that folks of all persuasions see you as an important ally.
- File a Terrafirma claim at the first mention of hiring a lawyer, filing a lawsuit, demanding extinguishment/boundary adjustment by a landowner or neighbor, or any other possible damage or challenge. If you are not certain, then be safe and file a placeholder claim.
We're here to help! If you have questions, please contact us at  .
Sincerely,
Hannah
Hannah Flake
Conservation Defense Specialist
ALLIANCE RISK MANAGEMENT SERVICES LLC
(202) 800-2248 |
P.S. Remember to submit your Terrafirma application for the 2022 policy year by Tuesday, Feb. 1!
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You have a lot of information to track, so it is important that you have a clear system for maintaining records that everyone in the organization follows all the time. You cannot save every piece of paper and still hope to identify and retrieve a critical record when the need arises. Records that are unmarked, misfiled or buried in so much redundant paperwork that they cannot be located in a timely manner are as good as lost.
Once you have a policy in place, everyone should follow detailed written procedures to ensure that nothing is accidentally misplaced and that your land trust is not overwhelmed with documents. These procedures should describe how to establish, identify, collect, manage, store and purge records, as well as reflect your consideration of the records needed to advance your mission, what records might be helpful or necessary to defend your land trust and what records are required by law.
Next month we will review a few specific critical records that you need to keep.
We're here to help! If you have questions, please contact us at .
Sincerely,
Hannah
Have great records.
You always hear that, but what does it mean and how do you do it? Land trust staff and volunteers that have experienced difficult disputes, whether on easement or owned land, can offer examples. They report that they communicated quickly and clearly with the landowner or neighbor, documented those communications in a phone, email, text and letter log, then documented fully all conditions on the protected property with dozens or sometimes hundreds of labelled photos, videos, descriptions, maps and aerial imagery. They diligently followed Land Trust Standards and Practices. Bob Neale, stewardship director for the Sonoma Land Trust and the lead staff for the entirety of their eight-year violation process including two appeals, said that “by following Standards and Practices diligently, we had the factual foundation in place for a solid defense that greatly supported our strong legal case.”
One of the first ways to identify facts is to prepare a timeline, including key dates such as:
- when the relationship between the parties started;
- when the contract was formed or when the conservation easement was signed; and
- when a violation occurred or other legal challenge commenced.
As part of this process, you can identify key people, including witnesses. Identify key events that did not happen, such as procedures that were not followed. In addition to thinking about the key facts, consider how the facts can be shown to the landowner or neighbor, and ultimately perhaps to a judge or jury. What facts are likely to have an emotional impact or be a critical deciding factor? Make the timeline detailed and annotate it with identification of documents that substantiate the facts.
Next month we will take a look at how a record policy and procedures can help you prevail in any dispute.
We're here to help! If you have questions, please contact us at .
Sincerely,
Hannah
Hannah Flake
Conservation Defense Coordinator
ALLIANCE RISK MANAGEMENT SERVICES LLC
(202) 800-2248 |
Adapted from: Practical Pointers for Land Trusts When Facing a Lawsuit or Other Legal Challenge of Any Size
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Issues with neighbors can be inevitable, even when everyone has good intentions. Ongoing disputes with neighbors can lead to claims of property damage, encroachment, nuisance or trespass. The inconsistent use of conservation property contrary to land trust guidelines can damage the conservation values or result in the land trust inadvertently granting an impermissible private benefit to the trespasser. The outcome of litigation is decided by state and local law, so land trusts should consult with experienced local counsel.
Terrafirma currently has 164 open claims regarding some type of neighbor difficulty, usually involving trespass or encroachments but also involving boundary disputes, access disputes and legal disputes about the enforceability of easements. Of the 164 total neighbor claims, 16 are covered claims in litigation or bound for litigation. Regardless of the nature of the dispute, there are some standard steps that can help prepare a land trust.
We’re here to help! If you have any questions, please let us know.
Sincerely,
Hannah
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Hannah Flake
Conservation Defense Coordinator
ALLIANCE RISK MANAGEMENT SERVICES LLC
(202) 800-2248 |
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Ransomware is a type of Cybercrime, a broad category that includes phishing, social engineering, invoice fraud, and extortion. It reportedly is the current leading cause of cyber attacks. Ransomware attacks, where someone uses malicious software to make your data inaccessible, are on the rise. Multiple land trusts have reported phishing schemes in the past year where they lost their data to a cyber-criminal such as happened to Colonial Pipeline.
Luckily, there is a lot that you can do!
Phishing emails almost always appear to come from a legitimate source, but it is not one and there are clues if you look for them.
- Exercise caution with links or attachments in emails you were not expecting; when in doubt, assume it is unsafe.
- Hover over the link to make sure that it goes to a legitimate site.
- Make sure everyone in your organization has training on identifying suspicious e-mails, texts, links or phone calls.
Have a plan and be proactive.
- Spend as much time on how you will handle a cyber-attack as in trying to prevent one. Have a cyber emergency plan that covers who, what, where and when.
- Consider a cyber insurance policy. Make sure you have the cyber carrier’s risk management contact info and instructions and have them accessible on paper for key staff. For more specific security measures see 6 Things Cyber Underwriters Love
- Back up your files. This keeps you from losing all of your data and then you can restore from your physical hard drive rather than pay a ransom. Access to cloud backups usually are blocked in a ransomware attack so have a physical hard drive backup too that you disconnect from your server or computers every night.
- Update your systems and software frequently so you immediately deploy security patches.
- Practice good password hygiene – long phrases, used only once per account, never revealed to others. You may want to use multi-factor authentication or a password manager.
- Follow the standard procedures on breach preparedness from the guide provided by MS-ISAC.
We’re here to help! If you have any questions, please let us know.
Sincerely,
Hannah
Hannah Flake
Conservation Defense Coordinator
ALLIANCE RISK MANAGEMENT SERVICES LLC
(202) 800-2248 |
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As Terrafirma prepares to enter its ninth policy year, we would like to remind members of some important points. Terrafirma is a unique insurance company – a nonprofit, member-owned risk retention group, created specifically to help land trusts. Please keep the following in mind so that we can better help you.
- File your claim at www.terrafirma.org within the policy year in which the problem first started to avoid risking loss of coverage of the claim.
- The policy year is not the same as the calendar year – it is March 1 to March 1, plus a 60-day grace period that ends April 30.
- Filing claims does not affect your premium price! If in doubt, please file a claim or contact us at .
- Entering a dispute in the Challenges section of your application is not an official claim.
We’re here to help! If you have any questions, please let us know.
Sincerely,
Hannah
Hannah Flake
Conservation Defense Coordinator
ALLIANCE RISK MANAGEMENT SERVICES LLC
(202) 800-2248 |
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