Last Updated: November 5, 2022
Conservation easements provide a way to compensate property owners for leaving their land in a natural state or as scenery rather than selling it for urban development or worrying that their heirs will do so.
For land conservation and open space proponents, conservation easements are the most economical method of providing a greenbelt around a town or city, keeping a beloved piece of land in pristine condition, and preserving needed wildlife habitat.
Stepping back a minute, we need to make sure you understand the concept of an easement. An easement is some portion of a property owner's rights that are defined and listed clearly, and then donated or sold to another entity on a temporary or permanent basis. The easement only gives particular rights under circumstances that sometimes are spelled out. The easement is recorded as a public document.
For example, when you bought your home, you probably granted a utility company an easement to cross your property whenever they need to. You might have granted a neighbor an easement to cross your property with their driveway. But you still "own" the property.
In the case of a conservation easement, the property owner agrees to self-limit the use of land to its natural vegetative state, or at least subject only to the type of maintenance that is spelled out in the document. The easement is donated usually to a conservation organization or perhaps to a government that will enforce the easement to keep the property as open space.
Many times the easement excludes a "building envelope" where a home, barn, and outbuildings are allowed. You can leave out any parts of the property you wish though.
People sometimes think that a conservation easement automatically grants public access through their property. This is not the case at all; your property remains private, unless of course you choose to make a portion of it available for a trail, hunting, or any other purpose you choose.
Just like when you sell property, a legal document is recorded by the county government. The original property owner still owns the underlying property and is free to sell it. If the document is properly written as a permanent easement, the restrictions apply to the next owner as well.
Often in the U.S. the property owner can receive a tax deduction for donating a part of their property rights to a non-profit organization. Your deduction won't be for the full value of the land, but for the portion of its value that is attributable to its potential for land development.
If the environmental value of the wilderness or habitat is substantial, conservation organizations have been known to pay for easements as well.
The receiving organization also might work with the landowner to
upgrade the conservation value of the land through steps such as:
In our opinion an organization that systematically pursues conservation easements is the most cost-effective method a region could use to accomplish land conservation. In turn land conservation is important for four major reasons, which we describe below:
Some people think that a government, ranging from federal to state to local, should purchase and hold conservation land rather than encouraging a program of conservation easements. In the best of all possible worlds, we agree.
The strongest downside of allowing property to remain in private ownership is that the owners or even a conservation organization may not know enough botany, soil science, hydrology, and zoology to properly conserve the land.
In particular, they may not be as aggressive as needed to stamp out invasive species as they come along and threaten to destroy the native, "good" vegetation.
An invasive species is something that tends to come in and take over. You might have heard of kudzu in the South, or Johnson grass or bush honeysuckle in the Midwest. Over time invasive species, whether plants or animals, can overtake the population of desirable species.
But on the other hand, the limiting factor in public purchase of land for conservation purposes is the expense of acquisition. Conservation easements always should be less expensive than outright purchase of the property, except in rare cases where a very strong market for urban development exists and there are no substitutes for the conservation land.
In addition, of course, if the public sector purchases the land, there are occasional maintenance and record-keeping expenses. At least at the beginning, maintenance costs might even be substantial.
Overall, the cost factor is the very practical reason that conservation easements are a good alternative.
You also may have heard of a land trust as a solution to preserving conservation land. "Land trust" is a much broader phrase with a variety of meanings. Some land trusts, such as the Vermont Land Trust, essentially own a large collection of conservation easements.
Incidentally, the term land trust also is used in urban areas, where it generally refers to property owners sharing in the ownership of the underlying land. That is something else entirely, but if you are interested in that topic, see our page on urban community and trusts.
So if you want to form a private organization to hold conservation easements and assist in their management, you might call it a land trust.
You may have heard about urban land trusts that inherit foreclosures or tax sale properties; that's different from these conservation land trusts.
Some land trusts directly purchase conservation land, as well as easements. Some turn the management of the land over to a public or private recreation or conservation entity or small set of entities.
Still other land trusts are aimed at housing affordability, either in an area where incomes are very low, or in an area where real estate prices are quite high.
These land trusts frequently allow the homes themselves to be sold, but for no more than a scheduled percentage of increase over time. The trust itself holds the land, and charges the homeowner a small rent for the use of the land. Often these are called community land trusts.
Simply from these examples, you can see that the term land trust is quite broad, and shouldn't automatically be assumed to be an organization that buys and holds conservation easements.
In sum, we think the very highest quality, most rare, and most fragile environmentally sensitive lands should be purchased by the public sector.
But then conservation lands of primarily local interest, for purposes of reducing carbon footprint and controlling urban sprawl, should be conserved using the least expensive method possible that will achieve the policy goals. And we think that conservation easements, combined with good maintenance practices that are performed or purchased by the owner or the easement holding organization, offer the best bang for the buck in most situations.
One problem with this approach (and land trusts, for that matter) is that small ones may be difficult to trace and enforce as time goes by. It's similar to the problem of enforcing any type of deed restriction after the people involved in setting it up have moved on.
For this reason private owners that wish to establish a conservation easement may wish to memorialize their wishes as deed restrictions instead of or in addition to conservation easements.
However, we think that the safeguard against this situation is assuring that the easement is donated to or purchased by a large and reputable conservation organization that is likely to exist for many years to come.
Like most good community development tools, this one also is subject to abuse. Limiting the amount of a deduction for conservation easements has recently been considered in Congress. A few bad actors took advantage of the tax laws to claim a high value for their donated easements. A coalition of conservation organizations said that in 2016 alone, 248 entities claimed $6 billion in unwarranted charitable contributions. The IRS has been trying to crack down on taxpayers holding the land on which they have donated a conservation easement for only a short time. Sen. Steve Daines of Montana has been taking the lead on filing what he considers narrowly constructed bills to stop this practice, carving out an exception for family partnerships.
For a scholarly paper on this issue, see the Lincoln Institute of Land Policy paper on reinventing the practice.
We also like conservation districts and will be writing about that in the near future. For more reading about voluntary private landowner approaches, see our answer to a visit question about restrictions for land conservation.
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