In Uncategorized on 07/25/2013 at 18:48

Not the Rick Astley 1988 hit, but rather a reiteration of the essential elements of a scenic easement, as Judge Haines deals with a Rule 161 reargument in Kayln M. Carpenter, et al., 2013 T.C. Memo. 172, filed 7/25/13.

This is a supplemental memo, as Kayln already lost in 2012 T. C. Memo. 1. But now Kayln claims Tax Court didn’t apply the learning in Gordo and Lorna Kaufman’s case. See my blogposts “A Joy Forever”, 4/4/11, and “‘A Joy Forever’–Maybe Not”, 7/20/12.

But Gordo’s and Lorna’s case had to do with termination of a scenic easement by reason of a mortgagee’s reservation of casualty insurance or condemnation proceeds, which aren’t in play here. And Gordo’s and Lorna’s deal “…stated that nothing in the conservation easement deed of trust shall be construed to limit the donee’s right to give its consent to changes in the conservation easement deed or to abandon some or all of its rights thereunder.” 2013 T. C. Memo. 172, at p. 17.

And the issue for a Rule 161 is whether there has been an intervening change in relevant law.

Kayln’s problem is the language in the grant of the easement in  her deal: “Extinguishment–If circumstances arise in the future such that render the purpose of this Conservation Easement impossible to accomplish, this Conservation Easement can be terminated or extinguished, whether in whole or in part, by judicial proceedings, or by mutual written agreement of both parties, provided no other parties will be impacted and no laws or regulations are violated by such termination. * * * [Emphasis added.]”. 2013 T. C. Memo 172, at p. 4.

Nothing in Kayln’s language limits the discretion of the parties to abrogate the easement. Gordo’s and Lorna’s deal with their donee limited the donee’s right to change the deal to changes in circumstances. Kayln and her donee could call off the deal at any time for whatever reason, change or no change in circumstances.

No good, says Judge Haines. Together forever is the deal.


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