The Conservation Easement (or Conservation
Agreement, or Deed of Conservation Easement)
What is A Conservation Easement?
It is a legal document agreed to by a landowner and
some qualified conservation organization or public
agency. Once it is completed, it becomes a public
document on file at the County Registry of Deeds.
The purpose of the Conservation Easement is to
stipulate ways in which the property in question will
be protected in its natural, undeveloped state. Such
preservation provides benefits, conserving open space,
protecting the contours of the land, maintaining
wildlife habitat, and preserving natural resources. A
Conservation Easement stipulates uses to which the land
can be put in the future as well as restrictions upon
its use. Typically, the restrictions involve such
matters as amount and nature of future subdivisions,
type and amount of construction that will be allowed in
the future, and so on. Other kinds of stipulation may
also be included.
Some other facts about Conservation Easement: A
landowner can put a portion of their land under
Conservation Easement and leave the rest unrestricted.
while a Conservation Easement can be time-limited, it
is more common for it to be an agreement in perpetuity.
The substantial tax benefits that the owner enjoys when
the property is put under Conservation Easement almost
always apply only to agreements in perpetuity.
What Happens to Ownership?
When an owner puts property under Conservation Easement
they do not relinquish ownership of the property; they
merely give up those development rights that are
specified in the Conservation Easement document to
which they have agreed. The property continues to be
owned by them and therefore can be bequeathed to heirs,
subdivided (only in accordance with the terms laid out
in the Conservation Easement document), built upon
(again,only in accordance with the terms laid out in
the Conservation Easement document), mortgaged, even
sold. Just like the landowner who entered into the
Conservation Easement, new owners, heirs, etc. will be
bound by the terms set out in the Conservation Easement
document. The terms of the Conservation Easement "run
with the property." It is the duty of the conservation
organization or public agency that entered into
agreement with the landowner to enforce the terms of
the agreement on the property.
It is easy to see why each Conservation Easement
document must be specific to the particular property is
it designed to conserve and will therefore have its own
unique terms.
When Can a Conservation Easement Be Created?
A Conservation Easement can be created at any time,
during the owner's life time or, as a part of estate
planning, through their will or testamentary trust.
Are There Different Kinds of Conservation
Easements?
Actually, no. Each Conservation Easement is a specific
agreement and is therefore unique. But there are three
main ways that Conservation Easements are usually
configured.
First, a landowner may simply decide at any time that
they want to put all or a portion of their property
under Conservation Easement. They may then (perhaps
with the help of SRA and/or their local land trust)
contact conservation organizations or public agencies
that might be interested in entering into a
Conservation Easement agreement with them.
Second, the landowner may inquire about whether a
conservation organization or public agency has access
to, or is aware of, money available to purchase a
conservation agreement on their property. This second
way, of arranging a Conservation Easement is the same
as the first except that the agreement includes the
added dimension of exchange of money for the owner's
agreement to enter into a Conservation Easement. (The
availability of money for this purpose is limited,and
there are eligibility requirements for property to be
considered for purchase of a conservation agreement.)
Third, a Conservation Easement may be worked out as a
part of the landowner's will or testamentary trust. It
goes into effect after the owner's death, when the will
or trust is executed--that is, the heirs to the
property are bound by the terms of the Conservation
Easement. This arrangement will significantly lower any
estate tax that the heirs may have to pay as a part of
inheriting and thus can serve to keep together property
whose value is such that iot otherwise would have to be
divided or sold for tax purposes.
There are many other variations upon the form of the
Conservation Easement.
What To Do
If you decide to explore the possibility of creating a
Conservation Easement on your property, the best first
step is to contact your SRA contact person (Steve Sloan
at steve.sloan@wachovia.com) and/or
the local land trust for our areas, the Southern Appalachian Highlands
Conservancy. They will help you through the
several-step process involved.
Contacts:
Local Land Trust: Southern Appalachian Highlands
Conservancy - 828-253-0095 SRA Contact for Conservation
Easements: Steve Sloan at steve.sloan@wachovia.com
Resources:
From the Southern Appalachian Highlands Conservancy
"Introduction to Conservation Easements, rev.", "SAHC
Project Selection Criteria", "Steps in The Process of
Donating a Conservation Easement". For copies email the
Conservancy at sahc@appalachian.org. For
information on the tax benefits of Conservation
Easements, see Voluntary Conservation Agreements:
An Introduction for North Carolina Land Owners, p.
8. This brochure is distributed by the
Conservation Trust for North Carolina and is
available at their web site www.ctnc.org. Your SRA contact will
have copies as well.
For further resources, see the "Useful Contacts" pages
at this web site