A conservation easement is a voluntary legally binding agreement between a landowner and a qualified land trust or government entity that permanently limits uses of the land in order to protect ecological, historic, or scenic resources. Besides possessing a piece of land and paying taxes on it, landowners have rights to the land such as the ability to subdivide, build structures, cut trees, mine for minerals, and other rights. A conservation easement allows a landowner to retain ownership while restricting some of those rights in order to protect the property’s conservation values. Easements are custom designed and negotiated to meet the personal and financial needs of the landowner. An easement may cover portions of a property or the entire parcel. The easement will identify the rights the landowner wishes to retain, limit, or forgo.
Why do landowners donate Conservation Easements?
Landowners donate conservation easements for a variety of reasons. Foremost is a love of their land and a strong desire to protect it for their families and future generations. Conservation easements are powerful estate planning tools that provide families the opportunity to plan together for the future of their land. Neighboring landowners who donate conservation easements on contiguous properties provide mutual protection against unwanted or unplanned development while sharing the benefits of conserving larger resource areas for wildlife, scenic landscapes, privacy, and prescribe burning.
The donation of a conservation easement may provide substantial tax benefits through the reduction of federal income and estate taxes, and possible property tax relief.
What does a typical Tall Timbers Conservation Easement contain?
A typical conservation easement between landowners and Tall Timbers will do the following:
- Follow the Internal Revenue Code guidelines for establishing conservation easements
- Specifies how the easement meets the mission of the Tall Timbers
- Establishes the criteria by which the easement meets the test of natural habitat, productive forestry, scenic values, or historically important land area
- Protect against commercial or residential development of the property
- Specify that the land may continue to be used in future years, as it is now, for traditional rural uses such as farming, forestry, hunting, wildlife management, etc.
- Allow for timber harvesting in conformance with “best management” standards and mutually agreeable management plans
- Specify the maximum number of buildings which may be located on the property in the future
- Conserve a special animal or plant habitat, wetland feature, or historic resource
As a legal agreement, a conservation easement is recorded in county records. Easements are granted in perpetuity, and therefore, all future owners are subject to the easement’s conditions. The role and responsibility of Tall Timbers is to work with the landowner to ensure that the conservation values identified in the easement are protected over time.
What rights does the landowner retain?
The landowner retains all property rights except the ones specifically and voluntarily relinquished or restricted by the easement. The landowner continues to own the land and can use it in any manner consistent with the easement provisions. Commonly, conservation easements with Tall Timbers allow the owner to continue doing on the land what he or she was doing prior to donating the easement. The owner can sell the land, live on it, or leave it by will. The landowner maintains and manages the property and continues to pay real estate taxes. In essence, while an easement must protect the conservation values on the property, it can be designed in a flexible manner by the landowner to achieve a broad range of personal goals.
Who is responsible for managing the property?
The landowner remains responsible for all land management activities. As the easement holder, Tall Timbers’ interest and responsibility is only to ensure that the conservation values identified in the easement are protected. While the Conservation Management Plan establishes broad guidelines to protect those values, it is not drafted to supplant the land management responsibility and rights of the landowner. The Plan recognizes the intrinsic importance of the property’s economic sustainability and traditional land uses.
As the only regional land trust in the country affiliated with a research station, Tall Timbers is in the unique position to offer valuable assistance to the landowner in finding practical and cost effective solutions to management problems and challenges. We take great pride in building a working relationship with our easement donors that is based on trust.
What rights does the Easement holder have?
The easement holder (a government entity or a qualified conservation organization such as Tall Timbers) has the obligation to enforce the easement restrictions. To do so, the easement holder has a limited right to access the property for annual monitoring.
Can a Conservation Easement ever be changed?
As easements are designed to be permanent legal agreements, amendment or revocation is difficult. Tall Timbers has an amendment policy that provides limited exceptions to change easements for minor modifications consistent with the easements conservation purposes.
Most easements on larger parcels have a Conservation Management Plan that is developed by the landowner, property manager, landowner’s forestry consultant, and Tall Timbers staff. The Plan guides agriculture, forestry, and wildlife management practices on the property. It is a more fluid document than the legal easement and, therefore, changes over time as circumstances require. The Conservation Management Plan may be modified without affecting the terms of the easement.
Does Tall Timbers accept all Easement offers?
No. Tall Timbers will consider accepting easements that further the mission of the organization and provide strategic conservation values that benefit the general public. Specifically, Tall Timbers seeks easements that are:
- Qualify as a conservation easement under the terms of the IRS regulations as stated above
- Of sufficient size to protect the conservation values associated with it
Preference is given to those easements that protect land:
- With important concentrations of natural, historic and or open space resources
- Facing a high risk of conversion for development
- Adjacent to existing easements or other protected open space areas
- Containing a low level of existing development
- With a low potential for future problems in monitoring, management, liability and enforcement
Must a Conservation Easement allow public access on the property?
No. Landowners granting conservation easements choose whether or not to open their property to the public. Public access is only required if the primary conservation value of the property is public recreation or education. Scenic or historic preservation easements require public visibility, but not necessarily access. Most of Tall Timbers’ easements do not require public access because they are protecting significant wildlife or plant habitats, open space, or agricultural lands.
Can a Conservation Easement be donated by will?
Yes, landowners can specify by will that a conservation easement be placed on their property upon their death. In addition, heirs can place an easement on the property within nine months after the death of a landowner in order to qualify for an estate tax charitable deduction. It is best, however, for landowners to donate conservation easements during their lifetimes, or in their wills, when there is adequate time to work through easement provisions. In all cases, however, it is advised to seek professional counsel regarding estate planning.
What are the costs associated with a Conservation Easement?
Tall Timbers strongly recommends that a landowner considering a conservation easement contact appropriate professional advisors to assist the landowner in making the decision and providing assistance through the process. Appropriate advisors would include:
- an attorney to provide legal advice and draft the conservation easement
- an appraiser to determine the value of the conservation easement which is required if the landowner intends to claim income or estate tax benefits
- an accountant to determine the income tax implications
For a discussion of Tall Timbers’ costs and process, please click here.