The Model Grant of Conservation Easement provides compensation that protects the holder of the easement from claims for injuries that arise on or around the retained property. [vii] The landowner has control over the persons authorized to carry on an activity; Therefore, the landowner has the opportunity to obtain, as a precondition for authorizing the activity, exemption agreements that protect the landowner from liability for injuries sustained by a participant in the activity on the site. What if the risk was not that the hunter would be injured, but that someone else would be injured by the hunter? An authorisation does not protect the Land Trust from being sued by that other person. [viii] Careful consideration should be given to who should or should be included in the term « party to compensation ». The indemnification provision does not allow the indemnification party to protect the premises under the liability insurance if the party to the compensation body is not insured under the policy. Please also take into account the solvency of the released party if the insurance proceeds may not be sufficient to cover the exemption fees. To the extent that a liberal party does not have sufficient assets to defend itself against a right and perhaps pay the right, it must extend the protection of its civil liability insurance to the indemnity party if it wishes to recover its compensation. Are the words « compensate » and « keep unharmed » synonymous? No. One is offensive and the other defensive – even though both are related to civil liability.
« Compensation » is an offensive right – a sword – that harmlessly allows » is on the defensive: the right not to be harassed by the other party itself, who claims compensation. (Queen Villas Homeowners Assn, vs. TCB Property Management, (2007) 149 Cal.App.4th 1, 9.) [vii] The incumbent is not responsible for the investigation of the security of the real property and is not authorized to maintain the property for public safety purposes. The landowners are solely responsible for the condition of the property. There is therefore no reason for the easement holder to provide mutual compensation to protect landowners from claims of infringement on or to protect retained property. [v] An exemption, defense and protection of damages agreement is referred to as a « compensation provision » in this Guide. Although the term « indemnify » is often synonymous, the courts have found that the term « hold unharmed » broadens the obligation to include not only losses out of one`s own pocket, but also liabilities that have not been definitively considered losses. The agreement on no damages was also described as a promise by the compensating party not to seek reimbursement from the indemnified party. Example.
Eagle View undertakes to indemnify the landowner for losses resulting from a breach of the lease agreement. The owner later sued Eagle View for violating the rental terms and received $US 5,000 in damages. Eagle View asserts in the same complaint that the infringement was not exclusively attributable to the breach of the lease by the lessor.. . . .