Land Conservation Options & Conservation Easement FAQ's
Donation of Conservation Easement
The most traditional tool for conserving private land, a conservation easement (also known as a conservation agreement) is a legal agreement between a landowner and a land trust or government agency that permanently limits uses of the land in order to protect its conservation values. It allows landowners to continue to own and use their land, and they can also sell it or pass it on to heirs.
When you donate a conservation easement to a land trust, you give up some of the rights associated with the land. For example, you might give up the right to build additional structures, while retaining the right to grow crops. Future owners also will be bound by the easement’s terms. The land trust is responsible for making sure the easement’s terms are followed. This is managed through “stewardship” by the land trust.
Conservation easements offer great flexibility. An easement on property containing rare wildlife habitat might prohibit any development, for example, while an easement on a farm might allow continued farming and the addition of agricultural structures. An easement may apply to all or a portion of the property, and need not require public access.
Donating land for conservation purposes is truly one of the finest legacies a person can leave to future generations. It may be the best conservation strategy for you if you do not wish to pass the land on to heirs; own property you no longer use; own highly appreciated property; have substantial real estate holdings and wish to reduce estate tax burdens; or would like to be relieved of the responsibility of managing and caring for land.
Donating land releases you from the responsibility of managing the land and can provide substantial income tax deductions and estate tax benefits (while avoiding any capital gains taxes that would have resulted from selling the property). Most important, if the land is donated because of its conservation value, it will be protected. (Although our focus here is on conservation land, commercial and residential properties can also be donated to a land trust, with the understanding that the organization will sell the land to support its conservation work.)
Donating a Remainder Interest in Land
An outright donation is not the only way to give land. You can continue to live on the land by donating a remainder interest and retaining a reserved life estate. In this arrangement, you donate the property during your lifetime, but continue to live on and use the property. When you die (or sooner if you choose), BRC gains full title and control over the property. By donating a remainder interest, you can continue to enjoy your land and may be eligible for an income tax deduction when the gift is made. The deduction is based on the fair market value of the donated property less the expected value of the reserved life estate.
Donation Land by Will
If you want to own and control your land during your lifetime, but assure its protection after your death, you can donate it by will. You should make sure the chosen recipient is willing and able to receive the gift.
Purchase of Land
Occasionally, BRC will purchase property with extraordinary ecological or cultural significance at the local, regional, or state level. Such purchases depend on public and private fundraising. BRC rarely retains ownership of the land for the long-term. In some cases our role is to facilitate public ownership – we will convey properties to public agencies to be used by the public at state parks, game lands, national parks or national forests. Other lands may be sold to a private landowner subject to a conservation easement that permanently conserves the land’s resource values.
Bargain Sale of Land or Conservation Easement
In a bargain sale, you sell the land or conservation easement to a land trust for less than its fair market value. This not only makes it more affordable for BRC, but offers several benefits to you: it provides cash, avoids some capital gains tax, and entitles you to a charitable income tax deduction based on the difference between the land’s fair market value and its sale price. This approach can be beneficial to you and BRC.
Talk with your own legal and financial advisors
This web site is designed to provide accurate, authoritative information in regard to the subject matter covered. Blue Ridge Conservancy does not provide tax or legal advice. Blue Ridge Conservancy is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of experienced professional advisors should be sought. You should not rely on any tax information on this website and you should consult with your own tax advisors about any information contained in this document regarding taxes.
Conservation Easement FAQ's:
+ What is a conservation easement?
A conservation easement is a voluntary, legally enforceable agreement between a landowner and a land trust or government agency wherein the landowner permanently separates certain ownership rights from a particular tract of land and the grantee, such as Blue Ridge Conservancy, agrees to monitor the land for the purpose of insuring that the provisions of the agreement are honored. The easement is recorded at the county or town records office so that all future owners and lenders will learn about the restrictions when they obtain title reports. Most often easements are donated along with a cash gift to the Conservancy to partially cover its maintenance cost.
Landowners grant conservation easements to protect their land from inappropriate development while retaining private ownership. A conservation easement assures the landowner that the resource values of his or her property will be protected forever, no matter who the future owners are.
Any property of value for agriculture, forestry, recreation, water resources, wildlife habitat or for its scenic or historic qualities may be protected by means of a conservation easement. The staff of the Blue Ridge Conservancy can help you evaluate the conservation values of your property.
+ Who can grant a conservation easement?
Any owner of property with conservation values as described above may grant a conservation easement. If the property belongs to more than one person, all owners must consent to granting the easement. If the property is mortgaged, the owner must obtain an agreement from the lender to subordinate its interests to that of the easement holder so that the conservation easement cannot be extinguished in the event of a foreclosure.
+ Why should I grant a conservation easement to a land trust?
People execute a conservation easement because they love their open space land, and want to protect their land from inappropriate development while keeping their private ownership of the property. Granting an easement to a conservation organization that qualifies under the Internal Revenue Code as a “public charity” – which nearly all land trusts do – can yield income tax savings. Moreover, land trusts, some of which are more than 100 years old, have the expertise and experience to work with landowners and ensure that the land will remain as permanent open space.
+ How restrictive is a conservation easement?
A conservation easement restricts development and other uses of the property to the degree that is necessary to protect its significant values of that particular property. Future residential or commercial construction, including roadways, may be prohibited entirely or limited to specific sites where the impact will not impair the environmental, scenic, agricultural, or historical qualities of the property.
Other restrictions or limitations in the use of the land may be applied, such as limiting the land to forestry or to agriculture, prohibiting filling, excavating or removal of topsoil and gravel, or disallowing billboards, commercial buildings and other undesired structures.
Certain uses of the land may be specifically allowed, such as educational and scientific activities, hunting, fishing, hiking or skiing in specified areas, or construction of buildings that conform to the purposes of the agreement. Provisions for the preservation or restoration and protection of structures and sites of historic significance located on the land may be included. Land protected by a conservation easement may be sold, gifted or transferred at any time. In some cases a limited number of specified subdivisions may be permitted. The Conservancy works in partnership with the landowner to determine the specific reserved rights and restricted to be contained in each conservation easement.
+ How can a conservation easement be tailored to my needs and wishes?
An easement restricts development to the degree that is necessary to protect the significant conservation values of that particular property. Sometimes this totally prohibits construction, and sometimes it doesn’t. Landowners and land trusts, working together, can write conservation easements that reflect both the landowner’s desires and the need to protect conservation values. Even the most restrictive easements typically permit landowners to continue such traditional uses of the land as farming and ranching.
+ How much land must be included in a conservation easement?
Any amount. A conservation easement may apply to only a part of an owner’s land or to all of it, depending upon what the owner wants to protect and whether the easements and restrictions are acceptable to the monitoring organization.
+ How are conservation easements enforced?
Essentially, the landowner has primary responsibility for ensuring that the provisions of the conservation easement are upheld. Blue Ridge Conservancy accepts responsibility for monitoring compliance with the terms of the agreement in perpetuity. Representatives of Blue Ridge Conservancy will visit the property at least annually to determine that no violations have occurred. The Conservancy will use written records and photographs to document conditions.
+ What are a land trust’s responsibilities regarding conservation easements?
The land trust is responsible for enforcing the restrictions that the easement document spells out. Therefore, the land trust monitors the property on a regular basis — typically once a year – to determine that the property remains in the condition prescribed by the easement document. The land trust maintains written records of these monitoring visits, which also provide the landowner a chance to keep in touch with the land trust. Many land trusts establish endowments to provide for long-term stewardship of the easements they hold.
+ Does an easement allow public access?
Landowners who grant conservation easements make their own choice about whether to open their property to the public. Some landowners convey specific public access rights such as allowing fishing in designated areas, or hiking along a clearly defined trail corridor. Others do not. Public access is more often granted when the property has a history of public use and is perceived to be a recreational resource.
+ What is the structure of a conservation easement?
A conservation easement conveys certain rights or interests in real property. It first identifies the grantor (landowner) and the grantee (Blue Ridge Conservancy). It states explicitly the purposes of the grantor in granting the easement. This is a requirement of the Internal Revenue Service as a prerequisite to deductibility of the value of the easement by the donor. The agreement will contain a careful description of the property to which it applies, including a designation of the portion of the property covered by the easement and any special features or unique and significant qualities that will be protected. An important section will list the landowner’s reserved rights and the restrictions on use of the property. There will also be some standard provisions typically included in all deeds and conveyances.
+ How long is the process of placing a conservation easement on land?
The length of the easement process is highly variable, depending on complexity, landowner responsiveness, and effects of outside regulations. Landowners should allow at least 3 months to complete the process.
+ How long does a conservation easement last?
Most easements “run with the land,” binding the original owner and all subsequent owners to the easement’s restrictions. Only gifts of perpetual easements can qualify for income and estate tax benefits. The easement is recorded at the county or town records office so that all future owners and lenders will learn about the restrictions when they obtain title reports.
+ What are the financial benefits to the landowner of donating a conservation easement?
Numerous benefits are available to landowners who make gifts of land or a conservation easement to Blue Ridge Conservancy, a non-profit conservation organization. The first of these is the satisfaction that comes from preserving significant land and water ways. Whether a farm or forest, wetlands or uplands, these lands will continue to support a myriad of rare plants and wild animals, local food source and will be enjoyed by people for years to come. Aside from this primary benefit, there may be financial rewards available to the landowner in the form of tax benefits. The following is a general listing of potential tax benefits. All landowners considering a land conservation donation should talk to their tax attorney or CPA for details.
Federal & State Income Tax Benefits for Conservation Easements
Gifts of land or conservation easements to a qualifying charitable conservation organization such as Blue Ridge Conservancy may qualify as a charitable deduction from adjusted gross income. The amount of the deduction is determined by the appraised value of the gift. In the case of a gift of a conservation easement, the appraisal estimates the difference between the fair market value of the property without restrictions and the fair market value of the property with restrictions. Under the Internal Revenue Code, a taxpayer may take a deduction of the fair market value of the donated conservation easement up to 50% of his or her adjusted gross income for this type of contribution. Any amount donated in excess of this limitation may be carried forward for up to fifteen years subject to the same limitation in each of those fifteen years.
Estate Tax Benefits
Land is often the most valuable portion of a person’s estate. When a landowner dies, their property is generally assessed at its “highest and best use” for purposes of determining estate taxes, regardless of the use of the property prior to their death. Properties protected by a perpetual conservation easement are assessed at their conservation value for estate tax purposes, resulting in the potential for significant estate tax savings. Often, protecting family land with a conservation easement can mean the difference between keeping the land in the family for future generations and being forced to sell the land to pay the estate tax bill.
Conservation easements have a wide variety of benefits that may or may not be of use to you and your family. Before taking any action, landowners are encouraged to seek professional advice from their tax advisors. Talk to your tax advisor about the opportunities provided by a charitable remainder trust as well.
Requirements for Charitable Deductions
The donation of a conservation easement must convey “public benefit” in order to qualify as a charitable contribution. The IRS requires that an easement meet at least one of the following criteria:
The conservation easement should preserve land for recreational or educational use by the general public;
The conservation easement should protect a relatively natural habitat of fish, wildlife, or plants, or similar ecosystem;
The conservation easement should preserve open space (including farm or forest land) if such preservation is a) pursuant to a clearly delineated federal, state or local policy; or b) for the scenic enjoyment of the public; or
The conservation easement should preserve a historically important land area or certified historic structure.
In order to claim an income tax deduction, the value of the conservation easement must be determined by a qualified appraisal. The appraiser you choose should have experience with development rights appraisals since it is possible that the Internal Revenue Service will look closely at your claim. Blue Ridge Conservancy can provide you with names of appraisers who have done such work.
A development rights appraisal includes, among other things, a description of the property, the method of valuation used to determine the fair market value of the property, certain information about the appraiser’s qualifications, and a description of the fee arrangement between the donor and the appraiser. A “fully completed appraisal summary” must be reported on IRS Form 8283 and attached to the donor’s federal income tax return. Appraisals must be conducted not earlier than 60 days prior to the date of contribution and no later than the due date of the return upon which the deduction is claimed.
Note: You should not rely on any tax information in this document and you should consult with your own tax advisors about any information contained in this document regarding taxes. Blue Ridge Conservancy does not provide tax advice.