Draft Defensively!

Small isn’t the same to everyone.  A farm building isn’t always a barn. Words you see as straightforward may seem ambiguous to courts and landowners. See a conservation easement clause below and read a case on conservation easement interpretation here.

Drafting to Avoid Ambiguity

Remember, you can't anticipate or define everything. But you can:

• articulate the intentions of parties to the original easement to give courts a guide to interpretation.
• avoid jargon, abbreviations, colloquialisms, “terms of art,” or technical terms all of which are highly likely to be misconstrued or found ambiguous.
• be wary of court and common law principles that may result in construction of easement language against conservation purposes of easement.
• include an explicit clause on liberal construction and conservation easement enabling act implementation.

Below is an example of a liberal construction clause. You might evaluate including this clause to avoid interpretations that hurt the conservation purposes of the easement. Remember to get advice from your local counsel to ensure your easement language is as clear as possible. Be sure to tailor this clause to your state laws and conditions.

Liberal Construction. Any general construction to the contrary notwithstanding, this easement shall be liberally construed to effectuate the Conservation Purposes and the policy and purposes of state law.  If any provision in this Easement is found to be ambiguous, an interpretation consistent with the Conservation Purposes that would render the provision valid shall be favored over any interpretation that would render it invalid.

State Enabling Acts

State enabling acts will affect drafting and interpretation of easements. A handful of state enabling acts include a provision that requires a liberal construction of easements in order to accomplish their conservation purposes. Usually, a well-drafted easement will have similar language, but a statutory provision no doubt lends the principle even more weight in a court context.

Often liberal construction provisions are accompanied by a conservation purpose statement at the beginning of the statute. Examples include California, Pennsylvania and West Virginia. At the same time, California may weaken its liberal construction provision by including a separate provision establishing a presumption that if an activity is not expressly prohibited by the easement, it shall be permitted. Colorado has similar language.

Further Information

For further information on state enabling acts, visit the Land Trust Alliance's Conservation Defense Clearinghouse and download Rob Levin's Guided Tour of the Conservation Easement Enabling Statutes.