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9-1 Decisions when submergence is within a few decades away
9.2 Actions Required or Encouraged by the Rolling Easement
Notice and inspection will be increasingly important as submergence becomes imminent.
As with all conservation easements, a key task for the rolling easement holder or local government will be to periodically remind landowners of the requirements. This is important both to prevent owners from violating the terms of the easement, and to discourage them from doing things that are inadvisable given those terms. A major renovation would increase the temptation to legally challenge (or cheat on) the requirement to refrain from shore protection; a decision to not renovate, by contrast, would help to settle the owner’s expectations of the eventual abandonment. Clear warnings from realtors (particularly buyers’ agents who discuss possible problems before the first visit) can discourage those unwilling to comply with the easement from even considering the property, making it more likely that the land will be bought by someone who is able to fit the eventual abandonment into his plans. No matter what the easement holder does, some people may take the chance of purchasing the land and then attempting to evade the terms of the easement. But most likely they would do so as a matter of economic speculation, which they would drop once there is no economic benefit from pursuing the matter. The purchaser who is never informed of the terms, by contrast, may come to oppose the rolling easement for more than economic reasons and thus be willing to take on legal costs (and impose legal costs on the holder) even when there is no economic benefit from doing so. Hence, ensuring that purchasers are truly aware of the terms of the easement will becomes increasingly important as the submerge date approaches.
In Section 8.1, we suggest that routine inspection might not be necessary for most of the duration of a rolling easement because shore protection is both unlikely and generally harmless several decades before submergence. Once submergence becomes imminent, however, inspection is important so that any violations can be cured before they matter. If a shoreline migration conservation easement[586] is designed to ensure that wetlands migrate inland, then once submergence of part of the parcel is expected within about a decade, the holder should inspect the ground elevations to ensure that land grades have not been artificially elevated over the years. If grade elevation has taken place, the holder can require the owner to re-grade the land back to the original elevation so it will become submerged as originally agreed. [587] Whether the parcel is along an eroding beach or a wetland shore, the inspection can also look for structures built for another purpose but likely to have an effect similar to a shore protection structure (e.g., retaining wall, paved elevated driveway).
The practical necessity of noticing violations before the submerge date is likely to create legal reasons for frequent inspections as well. [588] Legal duties are often based on what a reasonable person should do. It is reasonable for a rolling easement holder to pay more attention to lands about to be submerged than to those that are on high ground and still some distance from the shore. Although periodic reminders should be sufficient to show that the easement holder has not abandoned the easement, more frequent inspections might help an easement holder to address a number of legal issues regarding specific violations:
- Statute of Limitations. The statute of limitations period to prove a specific violation is generally shorter than the prescriptive period necessary to prove abandonment, and is often based on the statute of limitations for breach of contract. [589] In many states, an easement holder must go to court within three or four years[590] of when the holder knows or should know about the violation.[591] A periodic inspection schedule could clarify when the holder should know about violations. Thus frequent inspections can reduce the risk that a court will decline to order a remedy on grounds that the holder should have known about it sooner.
- Evidence to prove shore protection. Over time memories fade and witnesses move or die. A witness who has seen dump trucks bringing topsoil to the property could provide compelling testimony that the grade has been elevated.[592] Yet a land trust will not generally look for such witnesses until a violation is noticed. [593]
- Likelihood that a court orders a remedy. Even if a violation is proven, the doctrines of estoppel, waiver, and laches are sometimes advanced as reasons for a court to not order a remedy. [594] The rationale for these doctrines is that enforcement is unfair if the landowner made an investment while reasonably relying on the easement holder’s apparent intent to not use the easement to block the project. Frequent notice should be sufficient to prove that it was unreasonable for an owner to assume that the land trust would not object if the land is elevated. Still, some types of notice are easy to overlook. An on-site inspection is strong evidence that the landowner had notice that the holder takes the restrictions seriously.
The decade before submergence may also be a good time to begin negotiations on the endgame for the easement, especially with a shoreline migration easement owned by a land trust. Although a rolling easement can outline the basic set of responsibilities, the actual transition may involve details that cannot all be anticipated when the instrument is originally negotiated. The parameters of any such negotiations would depend, most of all, on whether the rolling easement will terminate the landowner’s use of any buildings on the property.
If the rolling easement terminates use of any building once it is seaward of the rolling design boundary, it may be advantageous to both parties to set a specific transfer date. If it is clear (for example) that the land will be submerged over a period starting in 6 years and ending in about 20 years, and that the home’s location will be submerged in 10–12 years, both parties may benefit by replacing restrictions based on the rolling design boundary, with specific language that will transfer title to the land (for example) 12 years hence. The landowner’s title could be converted to an “estate for years” with a duration of 12 years, with the rolling easement converted to a remainder interest that vests 12 years hence.[595] Most landowners—particularly those residing on the property—would benefit from eliminating the uncertainty about their tenure; and both parties would be spared the time invested in annual inspections and protracted negotiations.[596] If violations need to be cured, both parties may benefit by simply transferring the property on the date when it would have been submerged but for the violation, instead of re-grading the land down to the original elevation and then transferring it on that date anyway. [597]
If a rolling easement allows continued occupation after the home is seaward of spring high water, then property owners will have little reason to convert their land title into an estate for years. But in most cases, the landowner’s right to occupy a home will end once the home is seaward of the public trust boundary—for example mean high water. At that point, the negotiations will be similar to the situation where a home must be abandoned as soon as it is within the wetlands, except that the negotiated transfer date (and possibly the negotiations) will be later.
Rolling easements are likely to allow continued occupation of homes in areas where the public trust boundary does not roll,[598] and in areas where the comprehensive plan calls for an accommodation pathway. Negotiations would be very different. They might involve an inducement to abandon the home given the increasing costs of continued occupation, or they might simply focus on how the wetlands would be managed.
The likelihood of negotiating the details of the endgame depends on what happens to similar properties nearby. If adjacent properties have already been abandoned under similar arrangements, owners are likely to generally assume that the terms of the easement are binding, and negotiate the details in good faith. If other properties have been abandoned under different arrangements—or if this is the first parcel to be submerged—then some owners are likely to resist the requirement to abandon the property, or at least resist the timing specified in the rolling easement.[599]
When the holder of a rolling easement is a government agency, then landowners can also make a political appeal against enforcing the easement. If the environmental, safety, and budgetary benefits of allowing the shore to retreat are generally accepted, then such appeals will generally fail. For example, Texas has generally declined to provide more than temporary relief in response to requests for exemptions from its rolling easement policy. A record of repeated reminders about the easement and efforts to negotiate in good faith may also help agencies resist such pressure. Nevertheless, to mitigate the perceived hardship, some sort of financial payment may be necessary.
[586] Under the doctrine of waste, the owner of a possibility of reverter may have the power to stop such grade elevation, if the title transfers upon a given rise in sea level. If title transfers upon shore protection, the holder will have to take precautions to find such violations or risk losing title to the land through adverse possession.
[587] See, e.g., supra Table 6 (suggesting an initial elevation survey).
[588] This paragraph draws upon a memo to EPA prepared by Leslie Ratley-Beach, Sylvia Bates, and Rush Shay of the Land Trust alliance concerning the importance of frequent inspections. See generally Ratley-Beach, Sylvia Bates & Rush Shay, RE: Review Request: Draft Primer on Rolling Easements (email from Leslie Ratley-Beach to Jeremy Martinich of EPA, November 1, 2010).
[589]
[590]
[591] See generally Lynn M LoPucki, Statute of Limitations in Warranty, 21 U. of Fla. L. Rev. 336 (1968). But cf. Cheever, supra note 215, at 1098 n.109 (noting that the statute of limitations in at least one state does not directly articulate the discovery rule, which tolls the statute of limitations from the time of a violation until the time when the injured party knows or should have known about it).
[592] Comparing the original survey with the existing elevation of the land may still be the most reliable way to measure how much the elevation has changed. But a witness to the grade elevation would help to prove that the survey evidence is correct and that the grade elevation did not result from winds or flood waters depositing material.
[593] The admissibility of evidence is often a consideration that prompts land trusts to undertake regular inspections. Ratley-Beach et al, supra note 588. If written records rather than memories are the primary evidence that grade elevation has taken place, the records could be challenged as hearsay. See e.g. Fed. R. Evid. 801 and 802. But records maintained in the course of business, such as regular inspections, would generally be admissible under the business-records exception to the hearsay rule. Id. Cf. Fed. R. Evid. 803(6). The most important written record for a rolling easement would be the original survey which would be part of the original conveyance and hence not hearsay. If a survey takes place each time the land is sold, the subsequent surveys should also be admissible either because they are not hearsay either (e.g. they have been accepted by the owner and are signed by the buyer and hence an admission about the condition of the land) or they are a business record. Nevertheless, if a land trust wants to introduce as evidence photos or records of its visual observations about whether the grade had been elevated, the hearsay exception for business records may allow evidence from regular annual surveys that would not be allowed for one-time surveys. Whether decadal inspections would be treated as business records is less clear.
[594]
[595] Converting a possibility of reverter into an estate for years would be relatively straightforward because the land trust would be trading one type of future interest for another. If the land trust holds a conservation easement, it will generally be necessary to persuade a court that this change serves the conservation interest. A court’s willingness to accept such a change may depend on how the court views uncertainty and measures designed to reduce litigation costs. If the costs of obtaining such court orders were too high, another option would be to exchange forbearance by the conservancy from then until the projected submerge date in return for the remainder on an estate for years. During most (or all) of that period, the forbearance would have no environmental significance because the submerge date would not yet have arrived.
[596] IRS regulations appear to allow modifications of the instrument consistent with the objectives, and even allow for judicially approved sale as long as the proceeds are used for the same purpose. 26 C.F.R. § 1.170A-14(g)(6)(i).
[597] For example,
there may be value in having low-lying habitat just above wetland elevation.
[598] E.g., areas where the submerged land has already
been sold to private
landowners.
[599] For example, in Severance v. Patterson, the parcels were in the second row back from the beach when the Open Beaches Act was adopted, but along the Gulf when the case was filed. The owner challenged the application of the law to her home on the grounds that the public easement did not necessarily roll onto her property, and the court agreed. See supra note 566.
This page contains a section from: James G. Titus, Rolling Easements, U.S. Environmental Protection Agency. EPA‑430‑R‑11‑001 (2011). The report was originally published by EPA's Climate Ready Estuary Program in June 2011. The full report (PDF, 176 pp., 7 MB) is also available from the EPA web site.
For additional reports focused on the implications of rising sea level, go to Sea Level Rise Reports.