By Stephanie Schuyler
Conservation easements offer landowners the opportunity to maintain the natural characteristics of their land without foregoing income. Landowners who own natural, open space, agricultural, forest, recreational or historical land may be able to obtain a conservation easement and receive tax benefits both now and in the future.
Overview of Conversation Easements
A conservation easement is a legal agreement between a landowner (the “grantor”) and a public agency or nonprofit corporation, typically a land trust (the “grantee”), that permanently limits uses of the land in order to protect its conservation values. Conservation easements allow landowners to continue to own, live on, and use their land while protecting important natural resources.
A conservation easement restricts the type and degree of future development on the property. For example, an easement on farmland may prohibit the construction of new buildings while preserving the right to grow crops, and an easement on land that includes wildlife habitat might exclude any type of development whatsoever. An easement may or may not provide for public access to the property. Land covered by a conservation easement can be sold or passed on to heirs, but future owners will be bound by the terms of the easement. The easement is recorded in the local land records and becomes a part of the chain of title for the property.
Conservation easements are not one-size-fits-all, and each one is constructed to fit the characteristics of the natural resources being conserved, the needs of the landowner, and the objectives of the grantee. Easements can be designed to apply to just a portion of the property. It is important that the landowner reveal any future development intentions to a potential grantee to ensure that the easement can be appropriately crafted to take these goals into consideration.
Conservation easements are usually donated. However, certain grantees (like Ducks Unlimited or the Nature Conservancy) will occasionally purchase easements if the reasons are compelling enough. The grantee is responsible for making sure the easement’s terms are followed. Typically, monitoring visits occur once a year, but they may occur more frequently when the easement is vulnerable to frequent violations (e.g. sensitive natural areas). Monitoring procedures are established during easement negotiations and should not result in surprise or intrusive site visits.
Special Assessment/Tax Benefits
Depending on the terms of the easement, the landowner may receive a variety of tax benefits, ranging from lower property taxes to a deduction for the charitable donation. Once a conservation easement is granted, the grantor can apply for Conservation Easement Special Assessment. In order to qualify, the land must have a recorded conservation easement that demonstrates the land is capable of meeting the requirements for being considered exclusively for conservation purposes under section 170(h) of the Internal Revenue Code. The easement must be granted in perpetuity. A written certification must be filed with the county assessor stating that the easement satisfies these requirements. An additional tax may be extended for any land removed from Conservation Easement Special Assessment and added to the next general property tax roll. A landowner considering granting a conservation easement considering granting a conservation easement should seek the advice of legal and tax counsel to determine the possible income, estate, and property tax benefits of such a donation.
Overview of Some Oregon Grantees
Because conservation easements lead to a long-term relationship between the landowner and the grantee, it is important that the landowner find a grantee with conservation goals similar to his or her own. For example, some land trusts specialize in particular land types, such as rangeland, agriculture, natural or historical areas. Landowners may wish to research and meet with several land trusts to determine their options and find the best fit for them and their family prior to making any legal commitments.
Below is an overview of some accredited land trusts in Oregon. A nationwide list of land trusts can be found at: www.landtrustalliance.org.
The Wetlands Conservancy
Conservation Goals: Promoting community and private partnerships to permanently protect and conserve Oregon’s greatest wetlands. Geographic Scope: Oregon
Oregon Rangeland Trust
Conservation Goals: Preservation and protection of land in its natural, scenic, historical, agricultural, rangeland, wildlife habitat, recreational and/or open space condition. Geographic Scope: Oregon
Greenbelt Land Trust
Conservation Goals: Conservation of properties of ecological significance in the mid-Willamette Valley and the protection of properties of community-wide value, particularly scenic properties in and near Corvallis and Philomath. Geographic Scope: Benton County and mid-Willamette Valley
Conservation easements can be an effective tool for conserving private land, and they are increasingly being used to protect working farms and forests while managing growth. If you would like assistance in analyzing whether a conservation easement might be right for you, contact an attorney in our Real Estate and Land Use Group.