Conservation Easement Monitoring

Conservation easements are arguably one of the most important tools at the conservation community’s disposal. Each easement is written to suit the unique attributes of the land being protected in order to achieve the preservation goals of the land owner and conservation community at large. If everything goes to plan, the land will be protected and preserved for its conservation values in perpetuity. Land trusts, conservation nonprofits, and government entities take on the responsibility of entering into conservation easement agreements, and stewarding the land to ensure all terms — including restrictions on use, subdivision, and development — are upheld.

Public Use of Easement Property

A common concern from land trust board members is whether they might be held responsible for injury on conservation easement land where the organization is the easement holder rather than the landowner. While the landowner likely shoulders the lion’s share of the liability in the event of a bodily injury occurrence on the property, a conservation easement holder could be accused of being partially responsible, as well. Conservation easement agreements typically contain provisions such that the easement holder is responsible for physically or visually monitoring the property on a predetermined schedule.

Consider a scenario in which the injured party claims there was an obvious hazard on the property. It is possible for the injured party to sue the landowner as well as the easement holder, claiming that had the easement holder monitored the parcel per the terms required by the easement agreement, the hazard would have been discovered and remedied prior to the injury occurrence.

Insurance Implications

Whether or not a land trust is legally liable for an injury on easement property can vary by circumstance and jurisdiction. However, even in the case of a frivolous bodily injury suit, your organization may need to engage the services of an attorney to provide defense. Insurance is also necessary to meet contractual requirements of easement agreements in which landowners require proof of basic insurance, and request to be included as additional insured on the easement holder’s policies.

Nonprofits holding conservation easements should obtain general liability insurance coverage that specifically addresses easement acreage, and should consider an excess or umbrella policy to increase limits available in the event of catastrophic claims.

Monitoring Easement Properties

Land trusts and conservancies holding easements are typically required to monitor the parcels for violations 1–2 times per year. Employees and volunteers use various methods including walking the properties on foot, riding ATVs or snowmobiles, and even using drones in more remote locations.

Insurance Implications

Monitoring activities bring their own set of risks from difficult terrain, wildlife, weather, and equipment. Employees and volunteers risk injury while on foot, or could injure themselves or others while operating motorized equipment, There is also the risk of liability associated with aerial methods of monitoring (such as with drones) that may be excluded from general liability coverage.

Depending on monitoring methods employed, a land trust or conservancy may need to confirm that their general liability coverage allows use of ATVs, UTVs, drones, or similar motorized equipment. They should also ensure that staff and volunteers are protected through workers compensation and volunteer accident policies.

Upholding Terms of an Easement

From time to time, land trusts and conservancies may find themselves involved in a dispute over the terms of a conservation easement. It may be that a new landowner disagrees with the organization’s interpretation of terms, or perhaps heirs to the property dispute the validity of the agreement in place.

Insurance Implications

Such disagreements can lead to lawsuits, and boards of directors may find themselves in need of legal defense if they are on the receiving end of such a suit. Often, the landowner will claim the organization or the board has made an error in its interpretation of the easement agreement which should trigger Directors & Officers liability. However, not all D&O policies are equipped to respond when allegations involve easements as there may be other conditions of coverage (ex: a professional services exclusion) that would negatively impact the policy’s ability to respond. It is important to have coverage available from an insurance company with experience defending easement related suits.

Conservation easements are complex and not well understood by those outside the conservation community. It is essential to have an insurance partner that understands the process and is finely attuned to the risks involved, The Conserve-A-Nation® team provides the necessary experience, understanding, and coverage to help you identify exposures before issues arise. If your nonprofit is feeling misunderstood, reach out to request more information today.