A Conservation Easement is a private set of restrictions that are recorded on the property's deed. The restrictions regulate what land uses are appropriate and allowable on the land. In most cases, the Conservation Easement restricts housing, commercial, or industrial uses of the property. They may also restrict certain land practices such as cutting of oaks or streamside trees. In all cases, they restrict surface mining for minerals. The restrictions are negotiated directly between the landowner, the landowner's attorney, and the land trust. Every Conservation Easement is different and adapted to meet the needs of both the land and the landowner.
By definition, a Conservation Easement is forever. This perpetuity is a requirement in the Internal Revenue Code that allows for a tax deduction on the easement's value. For this reason, a landowner needs to consider their plans for the future, including those of the next generation.
We find that most of those we work with do a Conservation Easement because they care deeply about their land, as well as their desire to pass the land on to their children. Conservation Easements assure that the land is cared for forever and can reduce the value of the taxable estate. The easements are a tool for lowering estate taxes so the next generation does not lose the property due to a high estate tax bill upon death of their family member. Conservation Easements also qualify as charitable contributions against the landowner's income tax.
Conservation Easements are gaining in popularity as more family farmers and ranchers are considering the transfer of land to their children. Ultimately, conservation is more of a practical matter than a matter of popularity. In situations where it is most beneficial we see more interest.
The Land Conservancy has staff expertise in writing Conservation Easements, so the first step is to contact us at the Land Conservancy. We will evaluate your situation to decided if it is a project we are able to help with or whether another conservation group would be more appropriate. If the land and resources are consistent with our project criteria, we will visit the property and meet to discuss the various methods of protecting the land. We then prepare a staff report that is considered by our Board of Trustees. If the Board accepts the project, staff will begin drafting a document and will ask that you retain legal counsel. We do not negotiate Conservation Easements with landowners that are not represented by an attorney. This is for the protection of the landowner and the land trust.
A Conservation Easement represents a big responsibility to the land trust. It is our responsibility to monitor compliance with the easement and, if necessary, enforce it in court. The land trust is, in fact, required to do this by the State Attorney General. We are also responsible to the IRS for Conservation Easements that generate a federal tax deduction.
The short answer is yes. A landowner should be prepared to pay for legal counsel, and may also be responsible for acquiring a land appraisal or other necessary reports on the land condition. Sometimes costs are shared for some of these items. Because the land trust takes on a perpetual responsibility for monitoring and enforcement, we build into each transaction a plan for recovering our costs for these services. In most cases, landowners will be asked to make a contribution to the stewardship and defense fund, a pooled fund that covers our costs for monitoring and defense. We will discuss costs early on in the project planning so all parties are duly informed of their responsibilities.