September 29, 2011
McLaughlin: Conservation Easements and the Doctrine of MergerNancy A. McLaughlin (Utah), Conservation Easements and the Doctrine of Merger, 74 Duke J.L. & Contemp. Probs. ___ (2011):
Conservation easements raise a number of interesting legal issues, not the least of which is whether a conservation easement is automatically extinguished pursuant to the real property law doctrine of merger if its government or nonprofit holder acquires title to the encumbered land. This article explains that merger generally should not occur in such cases because the unity of ownership that is required for the doctrine to apply typically will not be present. This article also explains that extinguishing conservation easements that continue to provide significant benefits to the public through the doctrine of merger would be contrary to the conservation and historic preservation policies that underlie the state enabling statutes and the federal and state easement purchase and tax incentive programs.
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