Frequently asked questions
Why put a conservation easement on your land?
Many landowners have a deep-seated connection with their land and want to protect that natural heritage. A well-designed conservation easement allows a landowner to prevent unwanted uses but encourage agricultural activities or preserve forested lands, riparian corridors, open landscapes and passive recreational uses. A conservation easement can be a valuable tool for estate planning as well, since an easement may reduce the taxes paid by the beneficiary of the land. Perhaps most of all, an easement will provide a landowner with peace of mind in knowing that people with similar values and objectives will forever keep a vigilant watch over the land they love.
How do conservation easements relate to property rights?
Every landowner is the holder of certain rights related to the use of land and its resources. Historically, some of these rights—such as mineral and timber rights—have been used, taxed, or transferred separately from outright ownership. Road and utility easements are other examples. A conservation easement arises out of this principle of separating and modifying land ownership rights.
A conservation easement is created by a landowner (the "grantor") who desires to transfer certain rights to a qualified conservation organization (the "grantee"), under an agreement which governs the grantee's exercise of those rights.
Working cooperatively, the grantor and the grantee identify appropriate uses for the land (“reserved rights”) and detail activities which should be prohibited (“restricted uses”). For example, a landowner may transfer the right to use a property for residential development to the grantee. The grantee organization then holds that right, but is prohibited from ever using it. Thus, it is assured that no future owner will have the right to use the property for residential development. Conservation easements are generally perpetual, restricting certain land uses regardless of who may own the land in the future.Land subject to a conservation easement is still privately owned and managed. All rights of ownership which have not been transferred to the grantee may be exercised by the current landowner. For example, a landowner may transfer the rights to develop a property for commercial, industrial, or multi-residential purposes while retaining rights to use the land for farming or for a personal residence.
How might a conservation easement affect property taxes on the land?
Generally speaking, local real property tax assessments are based on a property's fair market value, which considers the property's development potential. If a conservation easement reduces the development potential of the property and limits its use, then the level of assessment and, accordingly, the amount of real property taxes, may be reduced. Each county approaches property tax issues differently, so it is important to contact the county in which the land is located to understand their taxing authority.
What kinds of land can be protected by a conservation easement?
Any land whose conservation is in the public interest can be protected by a conservation easement if conservation easements are authorized in that state. Common examples include prairies, woodland, wetlands, farmland, ranchland, scenic areas, riparian areas, and undisturbed natural areas.
How long does a conservation easement last?
It can vary, but easements are generally perpetual, and apply to all present and future owners of the land. State low governs the right to place conservation easements on land within a state; these laws often dictate the length of time, or term, of conservation easements within that state. The federal government also has programs for conservation easements and the terms of those easements are governed by each federal program.
Will an easement grant public access to my property?
Conservation easements do not grant public access unless specified by the landowner. Landowners may agree with land trusts to allow the land trust to invite the public to enjoy the conserved land, and the conservation easement will contain the specific terms that the parties have agreed upon. With advance notice to the landowners, the land trust will have access to visit the property, generally on an annual basis, to assess compliance with the terms of the conservation easement.
Who owns the land? Can it be sold?
The landowner who signed the conservation easement remains the owner of the land. The land can be bought and sold. However, the easement "runs with the land" and applies to all future landowners.
Can property owners still live on and use the land?
Yes. Easements typically allow for changes and additions to existing houses and buildings, and construction of farm buildings, and other customary agricultural structures. Easements generally allow for agricultural practices that do not have a negative impact on the conservation values of the land.
Each conservation easement is unique; the specific terms of each are tailored to the landowner’s wishes and the conservation values of the land to be protected. The rights and restrictions the parties agree upon are then included in the conservation easement. For example, one landowner may decide that all development rights should be restricted, so that the land will always look substantially as it does now. An owner of other land might wish to allow the option of adding an additional future dwelling on the land.
What types of uses are not allowed by a conservation easement?
In order to protect the conservation values of the land, a conservation easement will prohibit industrial and most commercial activities, may restrict subdivision of the land and may limit the placement of a number of additional structures on the land. Conservation easements may also limit activities around natural areas such as a prairie or wetland that might harm those natural systems. In essence, the landowner gives up development rights and uses that would damage or destroy those features that make the land agriculturally productive, natural and beautiful.
Who is responsible for maintenance and liability on a property protected by a conservation easement?
The landowner remains in control of the land protected by a conservation easement and so is responsible for all maintenance and liability issues. However, the land trust is responsible for assuring that the terms and conditions of the easement are met. The land trust monitors easement properties annually to confirm that the conservation values protected by the easement are indeed being preserved. If the terms of an easement are not being followed, the land trust will attempt to work with the landowner to correct the problem. If the problem is still not corrected, the land trust has the legal right to enforce the easement.
How much is a conservation easement worth?
The value of an easement varies with each situation. Generally, the more the easement restricts the uses of the property and the greater the chances that the property might otherwise be developed, the higher the value of the easement. To determine the easement value, the land must be appraised at both its fair market value without the easement restrictions, and its fair market value with the easement restrictions. The difference between these two appraisals is the easement value.
How do future owners of a property know that a conservation easement exists?
The easement is recorded in the county land records. A title search should reveal the existence of the easement. Even if future property owners are unaware of the easement, they remain legally bound by it.
Is land subject to a conservation easement protected from condemnation?
A conservation easement will not automatically prevent condemnation. A government’s power of eminent domain will supersede most private covenants, easements or other legal devices. However, since the land trust is granted a property right through a conservation easement, in most instances the land trust will partner with the landowner to try to protect the conservation values of the property in the case of a condemnation action.
Can a conservation easement be created through a testamentary gift?
Gifts of land and conservation easements can be made to qualified conservation organizations through a will, a trust or other bequest. While testamentary gifts generally are not considered charitable contributions for income tax purposes during the donor’s lifetime, such gifts may reduce the estate tax liability faced by the next generation.