Preserving the Forest in Perpetuity
What is a conservation easement?
A conservation easement is a voluntary agreement with a nonprofit land trust or government agency that allows a landowner to limit the type or amount of development on their property while retaining private ownership of the land. When completed, the conservation easement becomes part of the property deed. A way to visualize this is to think of owning land as holding a bundle of sticks. Each stick represents the landowner's right to do something with their property—the right to build a house, to extract minerals, to harvest timber, allow hunting, etc. A landowner may give up certain rights, or sticks from the bundle, associated with their property through a document: the conservation easement.
How does it work?
Conservation easements are tailored to the needs of the landowner and the recipient organization (which must be a qualified nonprofit organization or government agency). The recipient agrees to hold, but not use, the transferred rights. A landowner may either donate the conservation easement or sell it for partial or full appraised value. The terms of each conservation easement are negotiated by the landowner and the recipient organization.
Who owns and manages easement protected land?
The landowner retains full rights to control and manage their property within the limits of the easement. The landowner continues to bear all costs and liabilities related to ownership and maintenance of the property. The organization that owns the easement will monitor the property to ensure compliance with the easement's terms, but has no other management responsibilities and exercises no direct control over other activities on the land.
Why do people grant conservation easements?
People grant conservation easements because they want to protect their property from future unwanted development and damaging land uses, while retaining ownership of their land. By granting a conservation easement, a landowner can assure that the property will be protected forever, regardless of who owns it in the future. An additional benefit is that the donation of an easement may provide significant financial advantages.
What kind of financial advantages result from donating an easement?
Many landowners receive a federal income tax deduction for the gift of a conservation easement. The Internal Revenue Service allows a deduction if the easement is perpetual, is donated “exclusively for conservation purposes” and meets certain criteria for those conservation purposes. The amount of the tax deduction is determined by the value of the conservation easement. In addition, the landowner may have estate and property tax relief because the value of the property is reduced.
What activities are allowed on land protected by an easement?
The activities allowed depend on the landowner's wishes and the terms of the easement. In some cases, no further development is allowed on the land. In others, some additional development is allowed, but the amount and type is restricted. Conservation easements may be designed to cover all or only a portion of a property, and specific restrictions can vary for different parts of the property. Every easement is unique, tailored to each landowner's goals and land characteristics.
Can the landowner still sell or give the property away?
The landowner continues to own the property after executing an easement. Therefore, the owner can sell, give, or lease the property as before. However, all future owners assume ownership of the property subject to the conditions of the easement.
Does the public have a right of access to easement-protected property?
Not unless the landowner who grants the easement specifically allows it. Most easement donors do not want, and therefore do not allow, public access to their property.
How long does an easement last and who upholds it in the future?
To be eligible for a federal income tax deduction the easement must be "perpetual," that is, it must last forever. The property is monitored by the land trust or government agency selected by the landowner as the easement grantee to assure that the easement is not being violated. If the easement has been breached, steps must be taken to uphold the terms of the easement. Land trusts typically require the landowner to make a financial contribution (also tax deductible) to cover long-term management costs.
Does the easement have to cover all of the landowner's property?
No, some easements only cover a portion of the property. Again, it depends on the landowner's wishes. For example, if someone owns 80 acres, of which 35 acres are wetlands, the landowner may decide to restrict development only on these 35 acres. The remaining 45 acres would not be affected by the easement.
What kind of land can be protected by conservation easements?
IRS regulations require that the property have "significant" conservation values. This includes forests, wetlands, endangered species habitat, scenic areas and more.