Pending changes to Vermont law could help safeguard the permanence of conservation easements. Legislators are considering S.138, which includes provisions that would protect easements from the doctrine of merger. UVLT has led this recent effort and testified in favor of the included text last week.
Under the doctrine of merger, an easement is extinguished if the owner of the dominant estate obtains title to the servient estate. This is true for right-of-way easements, waterline easements etc. If the party who is benefited by the easement later acquires the underlying land, then they hold the “full bundle of rights” and there is no need for the easement to remain. When the doctrine of merger is applied to conservation easements, problems arise.
Conservation easements are intended to be permanent. Under existing Vermont law, a person who owns land subject to a conservation easement cannot be assured that the terms of the easement will remain in force if the land is sold or donated to the conservation group that holds the easement. This uncertainty has been problematic for land trusts that are engaged in farm and forestry transfers to support new working lands enterprises. It dampens the confidence of those considering bequests and donations of conserved land.
Land Trusts proposed to address this by creating a specific exemption from the merger doctrine. The same language was included in a bill about easements last year, but the bill failed for other reasons. The Vermont Land Trust supports the 2015 legislation.
Merger does not pose the same risks to New Hampshire conservation easements because the NH Attorney General’s office has an oversight role based on its charitable trust responsibilities.
For more information about the Vermont legislation contact Jeanie McIntyre, (603) 643-6626.