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Go Back  7.2 Where do rolling easements work better than setbacks? 
8.1:  Shoreline Migration Conservation Easements Go Forward



Like all restrictions of land use, a rolling easement requires a conscious effort by the property owner to comply, and by the regulatory agency or easement holder to monitor and enforce compliance. For most lands potentially submerged by a rising sea, the submerge date is at least several decades in the futureand often centuries. Therefore, management of a rolling easement involves two distinct phases:

This chapter examines the first phase, which will account for most of the time during which a rolling easement governs. The final chapter looks at the endgame.

We focus on rolling easements implemented as conservation easements, though many of the considerations would apply to regulations, interests in land, and ambulatory boundaries. Conservation easements require monitoring and enforcement, both to ensure that the expected conservation benefits occur and to create a record sufficient to prove that the owner has not abandoned the easement, in case the landowner attempts to invalidate it. The holder of a future interest (such as a possibility of reverter, or remainder interest in a life estate) generally has a legal right under the “doctrine of waste” to prevent the landowner from undertaking activities that would unreasonably diminish the value of his interest;[544] but the holder has no legal obligation to do so.[545] Although government regulations are not invalidated by an agency's failure to inspect and enforce them, after a period of time, construction that takes place without a permit is often treated as if it has been granted a permit. Thus, the management requirements of a rolling easement depend on whether it is implemented by regulation, conservation easement, or future interest.[546]

“Submerge date” refers to the day the rolling design boundary migrates inland of the main building on a parcel of land subject to a rolling easement.

Anyone intending to create or manage a rolling easement should consider the extensive literature on managing conservation easements, [547] but we make no attempt to summarize that body of knowledge here. Instead, we examine a few areas where managing a rolling easement is different from the typical conservation easement. We examine inspection and enforcement of shoreline migration conservation easements (Section 8.1) and possible attempts by landowners to have a court invalidate the easements (Section 8.2),[548] with a few considerations about regulatory rolling easements (Section 8.3).

[544] See supra note 240 and accompanying text.

[545] Here we are assuming that the possibility of reverter transfers title upon a physical event such as a given rise in sea level. If it transfers upon an action of the landowner (such as building a shore protection structure) then the land trust must inspect the property and take it over if the owner takes the action, or risk losing the property due to the adverse possession by the owner.

[546] For a future interest, the owner generally must file its claim within a reasonable time (usually the period specified in the statute of limitations for adverse possession). But cf. note 393 (statute requiring interest holders in Virginia to file within 10 years). In some states, the owners must re-file their interest in the property every 10–30 years. See supra note 394 and accompanying text.

[547] Those considering regulatory rolling easements and future interests in land would have to address issues that do not arise with conservation easements, but all of the issues that arise with conservation easements would be relevant, even if the specific legal rules are different.

[548] More states recognize perpetual conservation easements than allow future interests in land to extend in perpetuity. Moreover, the requirements for managing conservation easements are at least as great as for future interests.

Go Back  7.2 Where do rolling easements work better than setbacks? 
8.1:  Shoreline Migration Conservation Easements Go Forward

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.

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