Update December 28, 2016: The CLCC Model Conservation Easement and accompanying Commentary were revised as of December 28, 2016. The main revision seeks to address the Internal Revenue Service's (IRS) ongoing position that including an amendment provision may cause the easement to not meet the perpetuity requirement of IRS Code §170(h), thereby possibly undermining a landowner's claim for a charitable deduction. See Model Conservation Easement Section 17, page 16 and Commentary Section 17, pages 20-22.
Please review the changes carefully and always consult with your attorney when drafting a conservation easement and for other guidance. For more information contact CLCC Executive Director Amy B. Paterson at firstname.lastname@example.org.
The updated Model Conservation Easement and Commentary are available HERE.
Regarding statements of the IRS with respect to amendment clauses in conservation easements:
On November 10, 2015, the Land Trust Alliance issued a letter to Karin Gross and Marc Caine of the IRS Office of the Chief Counsel. LTA is a national organization representing 1700 land trusts that receive and preserve donations of conservation easements. The letter protests a crucial position taken by the IRS, and confirmed by IRS officials at the October 2015 National Land Trust Rally, that a general amendment clause in a conservation easement deed would disqualify any deduction for the donation. General amendment provisions typically provide that the easement can be amended by mutual agreement of the landowner and the land trust that holds the easement.
From the Land Trust Alliance:
Dedicated webpage on Amendments is HERE.
The Alliance's letter to the IRS regarding amendment clauses and a handout outlining the Alliance's key messages on the issue are available below.
12/4/15: A message from Leslie-Ratley Beach, Conservatoin Defense Director, Land Trust Alliance.