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Conservation Easement Frequently Asked Questions
Have you ever wondered what a land conservancy does, or if your property would be eligible for a conservation easement? This is the story of one family, their small farm in the mountains of western North Carolina, and how the Carolina Mountain Land Conservancy helped them protect it for the future.
Shot and edited by Will and Deni McIntyre, macfoto.com
Music written and performed by Jon Hinthorne
- What is a conservation easement?
- What is a land trust?
- Why do landowners donate conservation easements?
- What are the financial benefits?
- What costs are involved?
- How much is a conservation easement worth?
- What type of land can be protected?
- Does CMLC accept all easement offers?
- How long does a conservation easement last?
- What are the disadvantages?
- Will the public gain access?
- Who owns land protected by conservation easement?
- What types of uses are allowed with an easement?
- Who is responsible for maintenance and liability?
- Do other organizations accept conservation easements?
- Can a conservation easement be donated by a will?
- Is protected land immune from condemnation?
- How long will the process take?
- Is the landowner ever obligated to proceed?
- What does CMLC gain?
A conservation easement is a legally binding contract between a landowner and a land trust. With this contract, the landowner agrees to permanently eliminate some of the uses of their land, while retaining ownership and control. The landowner and land trust work together to determine which uses should be prohibited to protect the conservation values of the land and which uses should be retained for future owners. For instance, our easement donors usually decide to retain the right to continue to live on the land, to farm and manage timber, enjoy hunting and other pursuits, to allow for a limited number of additional future residences for their children, and to sell, lease or bequeath the land to their heirs. In accepting the easement, the land trust is obligated to forever ensure the provisions of the easement are upheld.
A land trust or land conservancy is a private, non-profit organization with a mission to help landowners protect the natural character, working landscape, and valuable natural resources on their property. Even on private land, protecting these conservation values benefits both future generations of landowners and the community as a whole.
In most cases, the desire to protect the natural and rural character of the land, as well as its natural resources motivates a landowner to donate a conservation easement. Most mountain landowners have a deep-seated connection with their land and want to protect that natural heritage. Those who have inherited family land from several generations often feel obligated to pass it on intact to their children.
A well-designed conservation easement will allow a landowner to prevent unwanted uses but encourage traditional, low-impact activities that can generate income. It can be a valuable tool for estate planning as well, since an easement is likely to reduce the taxes paid by the beneficiary of the land. Perhaps most of all, an easement will provide a landowner with peace of mind in knowing that people with similar values and objectives will forever keep a vigilant watch over the land they love.
There are several significant tax incentives for donating a conservation easement in North Carolina. Conceptually, an easement reduces the development potential of a property, thereby decreasing its market value. Since resource conservation, even on private land, is in the public interest, the market value of that reduction may be considered as a charitable donation by the IRS and by the NC Department of Revenue.
For conservation easement donations made through the end of 2009, the law allows the donor to claim an income tax deduction equal to the value of the gift. The donor can claim this deduction up to 50% of the donor’s adjusted gross income. If the donor is unable to claim the entire deduction on that year’s tax return, then the donor can carry forward the unused portion of the deduction to claim on future tax returns up to a limit of 15 years. Donors who earn at least half of their income from farming or ranching may take a deduction equal to 100% of their adjusted gross income, and also enjoy a 15-year carry-forward period. After 2009, all taxpayers will be subject to a 30% cap on the amount of the deduction that may be claimed, and the carry-forward period shrinks from 15 years to 5 years.
The N.C. Department of Revenue allows easement donors to claim an income tax credit for up to 25% of the value of their donation, capped at $250,000. Any unused portion of the credit may be carried forward for five succeeding years.
A conservation easement may also significantly reduce the estate taxes that must be paid by the heirs of the property. This is especially valuable for families that have land as a significant portion of their net worth. Furthermore, legislation passed in 1997 may allow the remaining value of land protected by conservation easement to be reduced by an additional 40% for the calculation of estate taxes.
Carolina Mountain Land Conservancy recommends that a landowner review a draft of the conservation easement with appropriate professional advisors who are experienced with conservation transactions. An appraiser can determine the market value of the conservation easement, which is required if the landowner intends to claim income tax benefits. An attorney should review the draft conservation easement to provide legal advice. An accountant can determine the income tax implications of the donation. An estate planner can review the implications of the easement for the landowner's estate.
In addition, CMLC will require a legal description of the property and verification of title from a real-estate attorney, and a surveyor may be needed to clearly delineate the property to be protected.
The financial value of a conservation easement depends on the land it protects, the surrounding conditions and the extent of the restrictions placed on the use of the land. Generally, the more restrictive the easement, the higher the easement value is. To determine the easement value, the land must be appraised at its fair market value both with and without the easement restrictions. The difference in these appraisal values at the time the easement is put in place becomes the value of the easement. It is this value that may be used for tax purposes. Commissioning an appraisal is the responsibility of the landowner, and it is important to use an appraiser experienced with the specialized nature of conservation easement appraisals. Upon request, CMLC can provide a list of appraisers familiar with conservation easements.
Most private land having significant ecological, historic, scenic or natural resource value provides a benefit to the public and can therefore be protected by an easement. This includes forests, wetlands, waterways, farmland, endangered species habitat and other natural or historic areas. In regard to tax benefits, the Internal Revenue Service regulations have specific criteria for eligibility for a qualified conservation easement. Generally, however, these criteria are met by an easement with Carolina Mountain Land Conservancy.
Conservation easement projects are evaluated on a case-by-case basis. CMLC staff members visit each potential site to assess its specific conservation values. If the property is determined to have significant conservation values, then CMLC must be sure that its involvement will bring a meaningful contribution to the protection of those values. The next consideration is the degree to which the rights and uses that the landowner wishes to retain are compatible with the long-term protection of the conservation values. CMLC must also evaluate the long-term cost and feasibility of ensuring the terms of the easement are upheld. These decisions are made by CMLC's Board of Trustees based upon the recommendations of the Land Committee and the staff.
All easements accepted by CMLC are perpetual, which is also a requirement of the IRS for a charitable deduction. Therefore, the terms of the easement apply to all present and future owners of the land.
A conservation easement restricts the economic and development potential of the land, which reduces the fair market value for both current and future owners. Although this can limit the number of potential buyers for the land, experience has shown there is a growing market for conservation lands. While the income and estate tax benefits of an easement can be substantial, the short-term profit derived from selling the land to a developer will most always outweigh the potential tax savings. Ultimately, a landowner must be absolutely certain that they can live with the restrictions imposed by an easement, as these restrictions are forever binding once the easement has been executed.
No, unless that is the intent of the landowner. Easements donated to CMLC do not require public access. Although a conservation easement must provide a public benefit in order to qualify for the income and estate tax incentives, the IRS and N.C. Department of Revenue recognize the significant public benefit provided by the protection of conservation values on private land.
The landowner retains ownership of the land. Only those rights and uses donated by the conservation easement are removed from the landowner's control. The landowner can continue to live on the land, engage in all activities allowed in the easement and transfer ownership to others.
Traditional and historic uses, such as farming, forestry, wildlife management and hunting, are often allowed in a typical easement. In all easements, the landowner retains the right of privacy, to transfer ownership, to maintain and replace houses and other structures and to take whatever actions may be necessary to maintain the existing conditions. It is appropriate for some landowners to retain the right to subdivide and build a limited number of additional residences.
In order to protect the conservation values of the land, a conservation easement will prohibit industrial and most commercial activities, restrict subdivision and the number and size of structures, limit the activities that would be permitted in and around valuable natural features such as wetlands and protect the natural character of the property. In essence, the landowner gives up those rights and uses that would damage or destroy those features that make the land natural and beautiful.
In retaining ownership and control, the landowner remains responsible for all maintenance and liability issues.
Units of government and certain other private, non-profit organizations that accept conservation easements in the mountains of North Carolina. They include organizations that are active nationwide, statewide, and those that have a smaller, more local focus.
A landowner may specify by will that a conservation easement be placed on his property upon his death. In addition to consulting a tax advisor or estate planner, the landowner should contact Carolina Mountain Land Conservancy as part of his estate planning to negotiate the broad terms of such an easement. If the easement qualifies under federal tax law, it can be expected to reduce the value of the land included in the estate and, therefore, any estate taxes due.
A conservation easement will not automatically prevent public condemnation. The State's power of eminent domain will supercede any number of private covenants, easements or other legal devices. Having an interest in the property through a conservation easement, CMLC will partner with the landowner to fiercely oppose any government action that would damage the conservation values of the property.
The time it takes to design and execute a conservation easement depends upon many factors, including the size and complexity of the property and its ownership, but usually will fall into the 5 - 7 month range. At minimum, this process involves an intensive inspection of the property; the negotiation and design of the easement document; and the legal execution of the conservation easement. In addition, CMLC's Land Committee and the full Board of Trustees must review and approve all prospective easements. A landowner also needs time to contemplate both the easement and a partnership with CMLC as well as consult qualified appraisers, attorneys, and other advisors to ensure the easement reflects their long-term interests. An interested landowner should begin talking CMLC staff in the spring to ensure completion of an easement that fiscal year. Landowners should not expect to complete an easement by December 31 if they contact CMLC after September 15.
A landowner may stop the donation process at any point up until the conservation easement has been signed and executed, and may begin again at any time in the future. CMLC is as concerned about the future interests of its partner landowners as it is about conservation. Furthermore, our long-term viability depends on the trust and goodwill of our easement donors, who are our best advocates. Not only is it not in our interest to have an unhappy easement donor, but also an easement must be voluntary in order to qualify for the substantial tax benefits that may be available to the donor.
CMLC is a private, non-profit conservation organization with a mission to preserve the natural beauty, the natural resources and the natural landscape on property in our region for all residents and future generations to enjoy. Each acre of property we help protect is a step in the direction of accomplishing our mission.
Land conservation benefits you, your community, and future generations.
For answers to questions or to learn more about how to work with Carolina Mountain Land Conservancy to preserve your land, contact Tom Fanslow, Land Protection Director, at firstname.lastname@example.org or at the number below.
Carolina Mountain Land Conservancy
847 Case St.
Hendersonville, NC 28792