Easements are typically held between landowners and a second party, and allow for the second party to make use of some part of the owner’s land. They may or may not be explicitly agreed upon in writing.
A conservation easement is a specialized form of easement, in which the agreement is between the landowner and a second party that is usually either a land trust (also referred to as a land conservation organization) or the government. In this case, the agreement is voluntary on the landowner’s party, and is formalized in writing.
The object of this type of easement is to protect the land or some aspect of the land-in other words, to conserve it. Since land trusts exist to preserve both land and natural resources, in the area in which they work, they are in the business of acquiring conservation easements.
Conservation easements “run with the land.” This means that the easement is tied to the land, not the owner. Thus, if the owner sells the land, the easement remains when the new owner takes over ownership. Once the terms are in place, they are permanent.
These easements can grant tax advantages, in terms of both income tax and estate tax, to the landowner. The landowner is also responsible for making sure the terms of the easement are observed.
It should also be noted that granting a conservation easement may reduce the value of the land, because land that has a conservation easement placed upon it may not be developed (for a subdivision, for example).
Why Grant a Conservation Easement?
Conservation easements allow owners of land to retain their title to their property, while also protecting some aspect of the property.
For instance, the landowner might want to protect scenic views on their property, protect water quality, maintain the land for future farming, protect wildlife or allow for natural forest development.
The land trust or government agency also has an interest in protecting these things. The landowner and land trust or agency make a formal agreement which lays out the terms.
What are the Terms of a Conservation Easement?
A landowner may wish to retain certain uses of the land for themselves. If so, they should be careful to spell out their plans for land use.
The land trust’s terms will also be explicitly agreed to. These types of issues can often be worked out in the agreement, as long as the landowner’s plans do not conflict with the purposes of the conservation. Granting a conservation does not make the land available to the public.
Do I Need an Attorney?
Conservative easement laws and regulations are complex and vary by jurisdiction. A local real estate lawyer can properly identify and explain the law in your jurisdiction and can also help you negotiate the terms of the agreement with the land trust so that your interests are protected.
A lawyer will also understand and explain all of the tax implications of your conservative easement to the land trust.