Title can sometimes feel like a maze, leaving you with questions like: “Why do I really need title insurance for my conservation project?” Learn what your organization should consider when examining title, and how to address issues that will inevitably arise. Examine strategies for dealing with these complicated questions and explore a lurid real life scenario or two. Learn how to be proactive when it’s time to request and review title on your next project and discover useful techniques for repairing common (and uncommon!) title problems.
In this seminar, we will analyze a lengthy annotated conservation easement document with emphasis on challenging drafting issues in response to recent court decisions that rejected frequently-used easement provisions, how to improve your easement documents, common errors in "template" documents, some tips on how to keep the IRS and the courts happy, often overlooked due diligence issues, attention to the different perspectives of the Grantor and Grantee - and some war stories.
This lively, hands-on session is designed to help you plan and execute effective negotiations. help you strengthen your negotiation skills. Using a series of role plays from the Harvard Law School, you will learn both theory and practice of BATNA (the best alternative to a negotiated agreement), ZOPA (the zone of possible agreement), the difference between interests and positions, creating value, reservation point and anchoring. You will gain confidence in your negotiation skills and you will develop the listening and interpersonal skills essential for successful negotiations. Roger Fisher describes “principled negotiation” as learning “how to obtain what you are entitled to and still be decent. It employs no tricks and no posturing. It enables you to be fair while protecting you against those who would take advantage of your fairness.” Sometimes land trusts are not invited to the negotiating table or they find themselves negotiating with a party with vastly more power and money. To help with both situations, you will learn how environmental leaders "negotiate the impossible" by developing power away from the negotiating table. Students are encouraged to read Negotiating the Impossible by Deepak Malhotra prior to the seminar.
Session Level: Intermediate Session Location: Raleigh Convention Center Price: $240/$275
In this session, you will walk through a sample appraisal with the guidance of certified appraisers who will highlight and explain common sections found in most appraisals. We will cover requirements by the Uniform Standards of Profession Appraisal Practice (USPAP), Uniform Appraisal Standards for Federal Land Acquisition (Yellowbook) and the IRS Appraisal Standards. Learn how to best present this information to your board and the landowner and what land trusts should ask for in an appraisal report.
Session Level: Basic Session Location: Raleigh Convention Center Price: $130/$150
This session will explore how best to draft the portions of conservation easements that identify building envelopes and permitted improvements. It will discuss recent caselaw regarding building envelopes and improvements and the significance of those cases to drafting choices we have made in the past and will need to make in the future. The session will also explore how permitted improvements are described and defined in conservation easements, and the importance of these definitions to avoiding ambiguity and to successful stewardship and enforcement of conservation easements. For both building envelopes and permitted improvements, the session will address the need to consider climate change in determining the location and size of building envelopes and allowed improvements. The session will provide and discuss sample language that can be used in future conservation easements.
This introductory course details how the appraisal process works, reviews the three approaches to value, and exhibits how one subject property can have three different value depending on the purpose of the appraisal. USPAP, Yellow Book, and IRS appraisals are emphasized.
Land trusts can and should tackle trespassers. Trespass is the fastest growing class of conservation easement violation and encroachment on fee land. Using a participatory format, presenters will address the legal bases for reaching violators who are not parties to the conservation easement, encroachers on fee land as well as apply practical and drafting lessons to their own situations. Attendees will take away sample easement language anticipating third party violations, lessons learned, and pertinent case and statutory law.
In November 2014, Sonoma Land Trust received a call from a neighbor about a potential conservation easement violation. A mere four years later we received the winning ruling. Our successful defense against a worst case scenario -- an egregious violation by deep pocketed, litigious, successor landowners with no respect for conservation easements --has provided many lessons learned about conservation easement stewardship. We will take the audience through the discovery of the violation, our communications with the landowners and our efforts to reach an amicable solution outside the court room. We will share specific examples of how important conservation easement template language, the "boiler plate," can be central to success in the courtroom. We will highlight how things as simple as a well done baseline report can make a difference. We will share how we handled correspondence and communications that made a significant impact in the case. Once litigation begins, it is a whole new world with rules and practices that are different than outside the courtroom. Participants will learn, in plain language, how to mentally prepare for what may come, from deposition to testifying on the stand. We will share our lessons learned, what we did right, what we did wrong and how we have brought those lessons into our organization to better protect easements moving forward.
Session Level: Intermediate Session Location: Raleigh Convention Center
Land conservation projects are, at their core, sophisticated real estate transactions. This workshop is intended for non-attorneys and will acquaint participants with basic real estate concepts, legal elements of real estate transactions and outline the acquisition process from property identification through title searches and related due diligence to closing. Emphasis will be placed on basic legal terminology, possible pitfalls, and practical advice. The topics will include: types of ownership and how interests in property can be held by different people; title searches, title insurance and problems; liens and encumbrances; surveys and legal descriptions; environmental due diligence and liability; letters of intent, purchase contracts, options and rights of first refusal; basic information on deeds, conservation easements and other documents; and closing and recording.
Conservation easements are a good tool for telling landowners what they can’t do, especially when it comes to the built environment: no houses, no roads, etc. However, when it comes to addressing what landowners should do (or even must do!) in regards to vegetation management, the limits of an easement becomes tested. Many land trust funders and easement holders are becoming more interested in the “performance” of private lands to meet certain societal goals such as climate change, organic farming or invasive species. In the eyes of many, it’s no longer enough just to keep land from being developed through a negative covenant. When we demand certain management regimes on private land through an easement, it stretches the legal and practical relationship between easement holder and private landowner. This session will explore the range of options for addressing the ephemeral nature of land/vegetation management in a perpetual document. Specifically it will address: the full spectrum of options for addressing how land is managed from the easement holder being completely at arms-length to the holder having affirmative rights to manage the property; the pros and cons of using a land management plan as the third leg of the stool in a conservation easement transaction (easement, baseline, management plan); and the long term implications for the land trust industry when we increase the expectations for the land trust role in directing or doing specific land management.
We will take participants through a worst case easement violation, from the day staff discovered it through trial. Successor owners dug up and hauled three heritage oak trees down the length of an easement property to landscape a new house on the neighboring parcel. Sonoma Land Trust staff encountered not just egregious physical harm from the easement violations, but a sophisticated landowner who lied, obstructed staff’s investigation and strung out negotiations to restore the property. Once the land trust filed suit, the owners’ legal team fought every step of the case with scorched earth tactics, requiring enormous amounts of staff and legal time. In this workshop, senior staff will share how they responded to physical results of easement violations, communicated with the violators, worked with Terrafirma, engaged outside counsel and handled discovery, depositions and trial. Counsel will address important legal issues including enforcement against third parties and valuing harm to the easement, as well as how to work with staff to build the strongest possible case over the course of multi-year litigation. Terrafirma will provide a perspective on assessing and ultimately supporting negotiations and then litigation to enforce against an easement violation.
This session will use actual examples of clauses to highlight drafting and stewardship issues in the interpretation and management of commercial uses on conservation easement lands. We will discuss key information points to consider such as scope, location and intensity of uses, landowner intent, compatibility with conservation values, and changing economic and climatic conditions. Come prepared to share success and horror stories as we collaborate to address this emerging issue.
Correctly completing Form 8283 can make or break a conservation easement deduction. The IRS has fully denied deductions because of improperly completed forms or the lack of required documentation. A contemporaneous written acknowledgement from the donee is not required to be attached to the Form 8283, but is required to be received by the donor for the donation to be deductible. Knowing what transaction expenses are deductible is also critical, as many are unaware that reimbursing a landowner for such expenses could render the donation a "bargain sale." While donors are legally responsible for substantiating donations, land trusts may assist donors to understand the forms, so long as they don't provide legal advice. The session will also discuss how a donee organization should review a donor's appraisal, what to do if the claimed value is so high as to "shock the conscience," and recent changes to Land Trust Standards and Practices and recent court cases related to Form 8283 and gift letters.
As land trusts grow in size, mature in sophistication, and protected property changes hands, they will more frequently find themselves in court, and not just on conservation matters. Vendor disputes, contract claims, employment issues, will contests, and even personal injury cases will materialize that spawn litigation. This workshop will provide pointers on how to prepare for those eventual court cases before the appear; correct common misconceptions about relevant privileges; identify critical steps to take when litigation looms; alert people to the challenges they’ll face with lawyers, judges, mediators, and their own staff and board and offer tools to overcome them; and outline ways to be positioned with the best chance of succeeding in the end.
If you are a medium or large land trust and wondering if there is a better way to efficiently monitor your growing portfolio of conservation easements, this workshop is for you. Representatives from three state-wide land trusts, each with over 500 conservation easements, will present their unique easement stewardship staffing models, including their use of volunteers, independent contractors and permanent staff. In addition, presenters will share techniques that enable their stewardship staff to be more efficient with their time, including aerial monitoring, transitioning to more effective databases, eliminating or automating tasks using technology, and going paperless. The Society for the Protection of New Hampshire Forests (accredited) stewards 750 conservation easements with six easement stewardship staff, less than 10 volunteers and annual aerial monitoring. Minnesota Land Trust (accredited) stewards over 500 easements on the ground annually with a stewardship staff of three and approximately 100 trained volunteers. Staff monitor roughly one third of the properties, and volunteers monitor the remaining two thirds. Colorado Open Lands (accredited) stewards over 500 conservation easements with four stewardship staff, two interns, seven regional contractors and seven volunteers. Approximately 50 properties are aerial monitored in any given year.
Using a successful 2018 case study from Colorado, learn how a landowner, land trust and county joined forces to effectively leverage combined public and private financing in the form of private equity, county and state open space funds, and tax credits that allowed for the conservation of a historic ranch, a scenario that would not have been possible without a team effort and joint vision. “P5 deals” are challenging to design and require all parties to develop innovative solutions. The teams must negotiate the numerous funding and transaction documents, coordinate the efforts of their various constituencies and experts, and shepherd the complex, multi-step transaction to a successful closing. In this session, representatives of each of the parties will share their experiences on a complex “P5 deal” at this crossroads of finance, law, policy and stewardship.
Session Level: Intermediate Session Location: Raleigh Convention Center CLE: CLE
Perpetuity is a core commitment for land trusts. But in California’s San Joaquin Valley, the conservation values that easements protect are threatened by climate change and water scarcity. Legal mandates to bring groundwater use in line with sustainable supplies are expected to lead to the retirement of hundreds of thousands of acres of farmland. While groundwater regulation has long been needed, and retired farmland presents significant opportunities for habitat restoration, large-scale land retirement is also a challenge for land trusts that have committed to protect farmland in perpetuity. Sequoia Riverlands Trust is both a holder of agricultural conservation easements in the San Joaquin Valley and a participant in the local agencies implementing California’s Sustainable Groundwater Management Act (SGMA). The Nature Conservancy is actively involved in land use and water policy throughout the state, including SGMA implementation. Drawing on this experience, the presenters will explore the challenges posed by climate change, water scarcity and farmland retirement and the options offered by Land Trust Standards and Practices and Land Trust Alliance guidance on amending conservation easements. They will then lead a discussion on how land trusts can ensure perpetual protection of conservation values in changing conditions.
This session will include a few hypothetical donation and bargain-sale situations and (simplified) tax planning spreadsheets showing income tax savings from charitable deductions, some tax tips and will illustrate how tax savings from charitable contributions depend on a lot of variables and a discussion of one unusual but overlooked "pro-taxpayer" rule in the enhanced easement deduction incentive.
This workshop will take participants, lawyers and nonlawyers alike, into a not-atypical land trust’s boardroom as its staff and directors take on the impact of climate change on a perpetual conservation easement. It will present a case study of the perils of a poorly drafted conservation easement when either sea level rise and erosion prompted by climate change threaten a protected property’s conservation values, or infrastructure like transmission lines or wind farms to support or generate renewable energy is a threat. Faced with this issue and its complexities, our land trust’s board will debate what to do in a meeting where every director’s strengths, weaknesses, history, quirks, personality, bias, conflicts and attitudes are in full display. And where the board’s obligations to the organization and to its mission threaten to take second place to their personal wishes. Lessons learned will be described in a fashion to assist the audience in managing their board’s engagement on a complicated issue, whether it be climate change-related or, really, anything else.
Session Level: Basic Session Location: Raleigh Convention Center
We're at it again! This roundtable is entering its 12th iteration at Rally! This session is ideal for conservation easement stewardship staff and experienced volunteers. Via peer-to-peer, lightly structured discussion, this session provides key opportunities to network with colleagues across the country, discussing pressing and emerging issues for stewardship and introduce further engagement with stewardship practitioners via The Learning Center resources and online forums. Bring troubling questions for objective feedback as well as success stories to provide examples to colleagues! Themes covered may include climate change resiliency, diversity and inclusion, technology options, record-keeping challenges, landowner relationships, second- and third-generation landowner issues, violations across the spectrum, staffing and organizational challenges and new monitoring ideas.
Session Level: All Session Location: Raleigh Convention Center