Q. Does anyone have any practical suggestions on how to avoid the merger doctrine when a landowner who has already granted a conservation easement to a land trust then decides to leave the fee interest to that same organization? In other words, upon death of the donor, I want to make sure the estate is "split", i.e., one organization own the fee and another hold the easement. How do I arrange to have the land trust transfer the easement before they are vested with the fee interest?

Matthew McQueen

Response #1

The landowner and land trust could enter into a contract agreeing that prior to accepting any gift of land from the landowner, it will assign any conservation easement on the same land to another qualified holder.

Marty Martin C. Womer, Esq.
MAINE CENTER FOR ELDER LAW, LLC
57 Portland Road, Suite 4
Kennebunk, ME 04043
Phone: 207-608-6995
Fax: 207-608-6905
mwomer@mainecenterforelderlaw.com
www.mainecenterforelderlaw.com

Response #2

The merger doctrine is a creature of state law, so its existence and the circumstances in which it applies and can be avoided will vary from state to state and over time. If it does govern in a particular state, it may be a default rule that applies when the parties have not provided to the contrary so that a provision in the CE and/or in the subsequent deed of the fee declaring the parties' intent that there be no merger may be sufficient.

Alternatively, the fee deed could incorporate and restate the CE restrictions and terms. An agreement such as Marty suggests or a conditional gift such as Linda proposes should work but may be complicated and would depend on people acting in a particular way in the future (adding some uncertainty and the need for a backup plan). Typically any variation in the identity of the grantee will prevent merger, so the CE could be granted to the LT and the fee to the LT as trustee for the people of the county or state.

Any of these and other options may work depending on the law of the specific state. This issue has been discussed here before, so check the archives. Don't rely on the listserv for more than ideas for research into your state's laws.

Ann Taylor Schwing
Land Trust Accreditation Commissioner (www.landtrustaccreditation.org; www.lta.org)
Past President, The Land Trust of Napa County (www.napalandtrust.org)
Trustee, American Inns of Court Foundation (www.innsofcourt.org)
Of counsel, McDonough Holland & Allen PC (www.mhalaw.com)
Author, Open Meeting Laws 2d (www.openmeetinglaws.com)

Response #3

A number of land trusts have set up separate "supporting organizations" specifically for this purpose.

Russell Shay
Director of Public Policy
Land Trust Alliance
1660 L Street, NW Suite 1100
Washington, DC 20036
202-638-4725 x 305
rshay@lta.org