To protect and conserve the natural resources, wildlife habitat, ecosystems, archaeological resources, agricultural uses, and scenic vistas that exist on their property a landowner may want to consider a conservation easement (CE). A CE is specifically tailored to the resources of the particular property, runs with the land, is usually perpetual, and creates a partnership between the governmental or charitable entities that are the easement holder and the landowner. To fully comprehend if this is the best option to accomplish your goals you should understand what a CE is, who your partners may be, the benefits to you as the landowner, the process of negotiation, and the rights and responsibilities of land stewardship after the CE is in place.
Conservation Easement: Purpose and Partners
The first step in securing a CE is for the landowner to define the unique characteristics of their land that make it a good candidate for a conservation easement. These may include the goal of protecting species, habitat,s or biodiversity, protecting water resources, preserving productive farmlands, preserving scenic viewsheds, protecting cultural or recreational resources, and promoting good private stewardship. That purpose will determine the type of partner that you need.
In order to preserve property, the landowner must find a partner with an approved conservation entity. According to Florida Law, a CE may only be held by governmental or charitable entities that have specific conservation purposes. Typically, CE partners are governmental entities, land trusts, and other conservation non-profits that have these objectives as part of their mission.
Conservation Easement: Landowner Benefits
There are extensive benefits that landowners may gain if they place a CE on their land. They may receive preferential tax treatment through reduced ad valorem assessment, they may generate an income tax deduction for a charitable contribution, and they may reduce the taxable value of an estate. Income may also be generated, and the landowner will be able to protect the land and perpetuate good land stewardship. Lastly, CE is a valuable tool for families who are attempting to keep land in their family, and for families who are legacy planning.
The Conservation Easement Document
A conservation easement is created through a series of negotiations between the landowner and the proposed CE holder. In order to begin negotiations, the CE holder will review the natural resource analysis of the property, determine if there is available funding, and will take into account any political or business considerations. At the same time, the landowner will consider legal and financial considerations and personal objectives. Before moving forward to the next step, the parties will agree on the types of restricted or prohibited uses on the property. Typically, construction, contamination, exotic plants, mining, drainage, and destruction of fish and wildlife habitats fall into this category. Once this initial hurdle is reached negotiations can begin.
Next, the parties will discuss such items as the grantor’s reserved rights—sale or transfer of interest, hunting, forestry operations, access, and grazing fall into this category. The affirmative rights of the grantee should also be determined. Important to the CE holder will be future inspections of the property, enforcement of the easement, and protection of conserved resources. The valuation of the conservation easement will include tax and appraisal experts that make a final determination of value. Generally, the easement value is equal to the market value today minus the market value with restrictions.
Before the Deal is Done:
A baseline documentation report will be required before closing. This will document structures and other improvements, land use and condition, special features, rare species, and unique characteristics of the property. A management plan going forward will also be required. These documents can be prepared with the assistance of environmental experts and guided by government and professional Best Management Practices. The final step will be to record the documents and maps.
Conservation Easement: Stewardship of Protected Land
Each CE is a unique document. An owner may reserve the right to make other uses of the property that do not conflict with the statutory prohibitions. Examples include hunting, recreation, riparian, and cattle grazing. Also, it is important to maintain your relationship with your partner. There will be regular inspections of the property and documents, the management plan should be updated as required, and any problems should be promptly and forthrightly addressed.
Easements are Forever
Although you will retain title to your property A CE runs with the land in perpetuity. You may discover down the road that there are restrictions you hadn’t thought about, such as the inability to use recreational vehicles (ATVs, snowmobiles, mini bikes, etc) or economically viable technologies like wind turbines. There is no going back to the negotiation table.
Think Before You Sign
Conservation easement agreements are a big deal and need to be carefully thought through before signing. They can be multiple pages long and usually take several months or longer of negotiating in order to get a fair deal. A landowner should always use an attorney to negotiate the contents of the agreement. Likewise, if you are buying land, you should make sure that there isn’t a CE agreement already in place, and if there is, exactly how that affects your proposed use of the property. There are cases of buyers discovering too late in the process that they don’t own certain rights to their property because of previous agreements.
I’m Rob Robinson, and I have spent a good portion of my career assisting clients as they traverse the complexities of conservation easements and land preservation. I understand the benefits and the pitfalls of conservation easements. If you have been approached by a land trust or non-profit organization about an easement, please contact me before the process begins. I can help you navigate the process of conservation easement negotiation.
If you are planning to purchase a piece of land that you may suspect has an easement in place, I am happy to research the property for you and find out what rights may already be taken. Let my experience guide you through the complexities of conservation easement agreements.
Please contact my office to schedule a consultation. As a sole practitioner, I can ensure that your legal matters will be handled with individualized care and attention.