Have questions about what a conservation easement is, or what the process means for you? Learn more with these FAQs:
A conservation easement is a voluntary agreement or contract between a landowner and a conserving entity such as a land trust. This agreement permanently limits use of the property in order to protect natural resources. Which activities are limited varies by easement, easement holder and property. There are many options!
Yes! You will retain ownership of your land and the land can still be sold and purchased. Use of the land will be restricted by the terms of the conservation easement.
Typically, a conservation easement governs or limits the right of the landowner to develop the land (development rights, i.e. building) and to mine the property (mineral rights). Other rights, such as agricultural, timber etc remain intact. The easement may also direct how the property and its resources are to be managed, such as requiring a forest management plan.
Easement holders are the entities which maintain and enforce the terms of a conservation easement. They are land trusts or town/state/federal agencies.
Easement holders have the following responsibilities:
- Create a Baseline Documentation Report (BDR): This is an initial document that establishes and describes the baseline conditions of the land at the time of conservation. It details the conditions and features of the land, mentions rights of way and may note particularly vulnerable areas or areas in need of restoration.
- Annual Easement Monitoring: The Easement Holder will complete annual visits to the property, walking boundaries and visiting any key designated areas to note changes. This is an opportunity to notice infringement by abutters, violations to the easement or natural environmental change over time. A written report is compiled and often references back to the original conditions noted in the BDR.
- Enforcement: If needed, the Easement Holder is responsible for enforcing the terms of the easement. This includes communicating with abutters or the landowner about respecting boundaries and restrictions on the land as laid out in the easement. In extreme cases, this can include legal action.
- New Landowner Contact: Land that has a conservation easement on it may still be sold and purchased. The terms of the easement are enforced forever, meaning that they apply to all future owners. In the event of a transfer of ownership, the easement holder will establish contact with the new landowner.
No, sometimes conservation easements have “excluded areas.” This most often includes house or other building envelopes on the land but can contain other portions of the lot.
A qualified appraisal is absolutely necessary to the easement process. The appraisal will determine the initial “market value” of the property before an easement as well as the “restricted value” of the property, that is to say, the value of the property once the easement is in place barring development. The value of the development rights outlined in the appraisal is a key factor in determining the overall value of the easement.
There are many steps and costs involved in a conservation easement. The burden of these costs may fall on the landowner, conserving entity or be shared in some form. Local, State and Federal funding sources are available in some cases, depending on the nature of the easement and the property. Some of the costs of an easement include:
- Legal Fees
- Title Search
- Land Trust Costs (staff time, contracted services)
- Stewardship and Legal Fund contributions (one time costs at time of conservation)
Creating a conservation easement is an important and permanent step. It is important to proceed at a measured pace, to investigate all options and to ensure that the easement terms are satisfactory. Land trust capacity and funding timelines may also factor into the duration of a project. Conservation easements may be completed in under a year in the most simple cases, but can also take several years to complete.
This is a complicated question which depends on the terms of the easement and whether the value of the easement is donated in whole or in part by the landowner. To answer this question it is best to speak directly to the land trust or easement holder you are working with.
Current use is a tax designation, not a state of land protection. A landowner may elect to put their land in ‘current use’ which means that they pay a lesser tax rate on acreage in exchange for a temporary promise that no development or building take place on those acres. The current use status of a parcel may be changed at any time so that it may be developed, although there is a resulting tax penalty called a land use change tax.
A Conservation Easement, on the other hand, is a permanent and legally binding agreement. When land is protected under an easement, it is protected forever, regardless of changes in ownership etc. What makes conservation land special is this permanent guarantee of protection from development. Enforcing this protection ‘in perpetuity’ (forever), requires the support of an organization or entity which has as its mission to steward that conservation land forever, and that’s where a land trust can come into the picture.
I am an active farmer or have active farmland that I might be interested in conserving. Can I still farm my land if it is conserved?
Yes! There are conservation funding programs and easement language/strategies designed for active farmland. Conserved land can still be farmed and farm operations can still grow (add barns, greenhouses etc). These can be more complex conservation projects, so it is important to engage in detailed conversations with conservation groups/land trusts regarding your practices, needs and property.
A conservation easement (or a land donation) is a legal process with financial implications. While a Land Trust can offer basic guidance, it is strongly recommended that any conserving landowner consult independent legal counsel and a tax professional. It is also recommended that a landowner consider speaking with multiple land trusts before embarking on the conservation process and also consider the need for independent review of appraisals or other documentation required by the conservation process. In the end, the individual landowner bears sole responsibility for all legal, financial and other implications.