Conservation Easements

The Tug Hill Tomorrow Land Trust provides landowners with a photo-rich, word-light, 11-page explanation of the 8 major steps required to establish a conservation easement to held by the land trust.

What considerations guide a conservation easement holder&rsquo;s processing of a landowner&rsquo;s request for the holder to: approve an action subject to the holder&rsquo;s review; waive the holder&rsquo;s right to enforce one or more restrictive covenants in a temporary accommodation to the owner; or interpret the terms of the grant of easement as applied to a particular situation? This guide provides direction for responding to landowner requests. A complementary publication, the <a href="https://library.weconservepa.org/library_items/2408-Model-Policy-for-Acting-on-Owner-Requests-for-Review-Waiver-and-Interpretation">Model Policy for Acting on Owner Requests for Review, Waiver, and Interpretation</a>, in addition to the policy, includes a template for communicating holder decisions. WeConservePA guide. 6 pages.

This is a comprehensive book on the tax benefits of the charitable contribution, or bargain sale, of a conservation easement. It provides a detailed explanation of the complex and extensive requirements of the federal tax code and related concepts, including the rules governing the operation of tax-exempt organizations such as land trusts.

Presentation focusing on Conservation Easement Drafting.

A 3-page article covering easement basics. Published by the National Association of Legal Assistants.

A conservation easement limits certain uses of the land in order to advance one or more conservation objectives while keeping the land in the owner’s control. It is established by mutual agreement of a landowner and a private land trust or government. (WeConservePA guide; 5 pages)

This article discusses the history of conservation easements up to the present, and analyzes several barriers preventing even broader use of this valuable private land protection instrument. It alerts landowners and easement holders to several legal and policy concerns creating barriers to the effectiveness and appeal of conservation easements and investigates available and potential resolutions to these concerns.

This fact sheet answers a number of frequently asked basic questions about conservation easements.

Guide outlines various conservation options for landowners, including conservation easements, donating land, and more.

Conservation transactions may involve substantial planning and execution costs. Some of those expenses clearly benefit one or the other party to the transaction. Who benefits from other expenses may be quite ambiguous. Accurate assignment of financial responsibility for these various transactional expenses has both economic and tax consequences for the landowner as well as implications for the conservation organization. 4 pp.

In most circumstances, a conservation easement is a far better tool for conserving land than a deed restriction. This guide explains how the tools differ. [WeConservePA guide; 4 pages]

Properly delineating the boundaries of conservation easements and their different protection areas is crucial to easement stewardship and enforcement. Conservation restrictions are difficult, if not impossible, to enforce unless tied to physical locations on the ground. This guide discusses the delineation of boundaries and protection areas using physical markers, verbal descriptions, and visual depictions. [7-page WeConservePA guide]

Conservation easements can be designed to ensure sustainable forestry and safeguard important public values. This 54 page report includes a survey of three working forest conservation easements and evaluates how well each easement and its related documents ensures sustainable forestry.

A prospective buyer of eased land may want the owner of the land to provide them a guarantee that the easement holder won’t pursue claims against them for violations that predate their interest. A mortgage lender may want a guarantee that there are no violations that could jeopardize payback of their loan. This guide describes how a holder can responsibly provide sufficient assurance. It also provides background for WeConservePA’s Model Compliance Statement. WeConservePA guide. 3 pages.

As part of the process a landowner must undergo when seeking to develop land where either federally listed endangered or threatened species, or their habitat, are present, the landowner must prepare a Habitat Conservation Plan. It has become commonplace for government agencies to require the creation of conservation easements as part of these plans. This article describes the use of conservation easements in the Habitat Conservation Plan process under the Endangered Species Act and explains the complexities that arise with the enforcement of those conservation easements.

Some donations of conservation easements qualify for a federal income tax deduction; others do not.

<p>In accepting a conservation easement from you, the land trust takes on the responsibility of ensuring that your land is forever conserved. Fulfilling this duty requires money. This is why the land trust seeks financial support from you or subsequent owners of the land. WeConservePA guide. 2 pages.</p>

This document was developed by Brandywine Conservancy to share with prospective landowners and explain the many important legal and financial issues that a prospective easement donor should consider.

Conservation organizations can avoid many potential difficulties in conservation easement stewardship by ensuring that their conservation easement documents are drafted to conform with the Conservation and Preservation Easements Act. WeConservePA guide. 7 pages.

This article undertakes a critical analysis of the tax incentives that encourage the donation of conservation easements and the proposals to increase them. It concludes that a responsible approach to increasing the tax incentives is called for: Congress should increase the incentives only if some assurance can be had that the increase will be efficient, that land trusts and government agencies have the expertise and resources to appropriately screen and steward the anticipated additional easements, and that the increase will not encourage exploitation and abuse.

Conservation organizations rely on conservation easements for diverse purposes, including protection of species and natural communities, working forests, and open space. This research investigated how perpetual conservation easements incorporated property rights, responsibilities, and options for change over time in land management. Many conservation easements involved significant constraints on easement holders’ options for altering land management to achieve conservation purposes over time. This study suggests the need for greater attention to easement drafting, monitoring, and ongoing decision processes to ensure the public benefits of land conservation in changing landscapes.

This "Beyond Basics: Easements Part II" webcast delves into conservation easements, providing information on municipal land protection programs, financial benefits to landowners, steps in acquiring easements, and easement stewardship.

<p>The Model Assignment of Grant of Conservation Easement and Declaration of Covenants with Commentary is a tool for transferring conservation easements and associated responsibilities, as well as related documents and stewardship funding, to other responsible organizations.</p>

A prospective buyer of eased land may want the owner of the land to provide them a guarantee that the easement holder won’t pursue claims against them for violations that predate their interest. A mortgage lender may want a guarantee that there are no violations that could jeopardize payback of their loan. The assurance needed could be achieved by the easement holder providing an estoppel certificate; however, this is problematic. The Model Compliance Statement is generally the appropriate and responsible response to a request for assurance.

<p>When a mortgage precedes an easement on a property, the possibility that one day the mortgage could be foreclosed poses a threat to the continued existence of the easement unless the holder of the mortgage signs an agreement that allows the easement to survive a foreclosure. In addition, &quot;subordination&quot; is necessary if a tax deduction will be sought for an easement donation. This model legal document provides a vehicle to satisfy both of these issues. Be sure to download both the model and the commentary.</p>

<p>The Model Conservation Easement Donation Agreement helps land trusts avoid getting stuck with unreimbursed major expenses if a would-be easement donor walks away from a project. It outlines the steps to completing a project and the responsibilities of the land trust and donor. It also helps the parties avoid common misunderstandings. A DRAFT OF A NEW EDITION IS BEING OFFERED FOR PUBLIC REVIEW AS OF NOVEMBER 2024. It is suitable for use but won&#39;t be finalized by WeConservePA until interested parties have ample time to review and comment. Send comments to Justin Hollinger, Esq., at jhollinger_at_weconservepa.org</p>

This set of model documents and accompanying commentary helps local governments formally dedicate lands to public purposes, reserve portions for other purposes, and clarify what are and aren’t appropriate uses of the land. The materials include an option to grant a conservation easement to a qualified holder as added protection for the land. (WeConservePA also publishes a model declaration to protect government-held conservation easements. See https://library.weconservepa.org/library_items/2249)

<p>The Model Grant of Conservation Easement and Declaration of Covenants provides users with a state-of-the-art legal document together with an expansive commentary. Built on practitioner experiences and feedback, no easement document in the nation has benefited from more cycles of peer review. Download both the model and the commentary. The commentary explains the reasoning behind every provision, instructs on use of the model, and provides a wealth of alternative and optional provisions. The model was last updated in July 2024. (The model and commentary together are 120 pages.)</p>

<p>This model policy guides&nbsp;a conservation easement holder&rsquo;s processing of a landowner&rsquo;s request for the holder to: (1) approve an action subject to the holder&rsquo;s review; (2) waive the holder&rsquo;s right to enforce one or more restrictive covenants in a temporary accommodation to the owner; or (3) interpret the terms of the grant of easement as applied to a particular situation. The file&nbsp;also includes a template&nbsp;for communicating the holder&#39;s decisions. WeConservePA&rsquo;s guide <a href="https://library.weconservepa.org/guides/232-acting-on-owner-requests-for-review-waiver-and-interpretation-regarding-conservation-easements">Acting on Owner Requests for Review, Waiver, and Interpretation Regarding Conservation Easements</a> provides additional direction on this subject.</p>

TEMPORARILY OUT OF SERVICE. DO NOT USE POSTED SPREADSHEET. Land trusts can use this tool to estimate the annual costs of stewardship for a conservation easement and the initial investment in a stewardship fund that will be needed to cover the costs. The calculator can be adapted to the needs of an individual land trust and to the specifics of a conservation easement. The guide "Costs of Conservation Easement Stewardship" (http://conservationtools.org/guides/86) explains many of the features and choices made in the calculator.

<p>The Model Stewardship Funding Covenant&nbsp;is a tool for making funding arrangements for&nbsp;conservation easement stewardship that are both affordable to landowners and adequate to cover the easement holder&#39;s stewardship expenses in the long run. With the model, landowners can stretch a financial commitment over time, either deferring their intended contributions to future dates respectful of&nbsp;their financial situation or extending payment obligations to future owners of the land. The model offers a variety of financial&nbsp;arrangements, from installment payments to private transfer fees, in support of conservation. Download and review both the model and the commentary.</p>

When a mortgage predates an easement on a property, the easement could be extinguished in a foreclosure if the owners default on their mortgage payments. And if the easement is to be donated and the donors wish to obtain tax benefits, additional complications arise. These problems can be avoided by obtaining an agreement from the mortgage holder appropriate to the circumstances. WeConservePA guide. 9 pages.

Conservation easements have permitted the leverage of private initiative, resources, and commitment to ensure that open space and wildlife habitats are preserved for future generations. At the same time though, private conservation easements raise public policy concerns related to the tax subsidies, the absence of public process in their creation, long-term stewardship, and flexibility to adapt conserved land to emerging needs of the community. This article examines the recent achievements and benefits of conservation easements, and suggests some reforms that might make them an even stronger vehicle for land conservation in the public interest.

State and federal governments face important choices about how to provide public access to conservation easement information, given growing concerns that the public’s substantial investment in conservation easements will be lost without comprehensive tracking over the long term. This article reflects on the public nature of conservation easements, the challenges posed by their perpetuity, and provides concrete recommendations for legislatures seeking to improve conservation easement tracking.

In Pennsylvania, death triggers a state inheritance tax on the distribution of the deceased person’s assets (the “estate”) to the beneficiaries of the estate. Conservation restrictions in support of agriculture on land included in the estate can reduce the inheritance tax owed. WeConservePA guide. 4 pages.

Definition of restraint on alienation from thefreedictionary.com with examples n. an attempt in a deed or will to prevent the sale or other transfer of real property either forever or for an extremely long period of time. Such a restraint on the freedom to transfer property is generally unlawful and therefore, void or voidable (can be made void if an owner objects), since a present owner should not be able to tie the hands of future generations to deal with their property. This ban on a restraint on alienation (transfer) is called "the rule against perpetuities."

Pursuant to Senate Resolution 2007-195, this is a 78 page report on the impacts of Pennsylvania's Agricultural Conservation Easement Purchase Program.

A riparian buffer protection agreement limits activities on all or a portion of a property to advance conservation purposes while keeping the property in the control of the landowner.

An overview of conservation easements, including the basics of what a conservation easement is, the tax benefits of donating an easement, and the easement process at Natural Lands Trust.

A guide for establishing and maintaining a conservation easement program, the handbook provides technical guidelines for drafting conservation easements-complete with case studies, sample documents and references to landmark court decisions. Originally published in 1988, this new edition draws on 17 years of land trust experience in completing easements. It includes practical how-to tips and checklists for land trust staff and board members; detailed drafting guidelines for attorneys; and many sample documents on a companion CD-ROM.

Exacted conservation easements are not donated or voluntarily sold, they are mitigation requirements for landowners seeking to fulfill goals other than land protection. This article outlines reasons why exacted conservation easements emerged and why they are such a popular tool. Because they don’t embody the freedom of contract associated with traditional conservation easements and often tie directly to regulation of property, they are a tool that directly conflicts with many of the goals that gave rise to their emergence.

By statute and by common law interpretation, a conservation easement is a real estate interest and is governed by real estate law, in particular, the law of servitudes. This guide analyzes the nature of the conservation easement and the operation of the document granting the easement. It includes discussion of the mechanisms that assist in upholding the easement's conservation objectives in perpetuity. WeConservePA guide. 15 pages.

This article explores the role land trusts and conservation easements can play in the protection of biodiversity on private lands.

These article are a two part series that explore tribal use of conservation trust mechanisms to assert traditional native prerogatives on privately held lands in the United States. Part I (The Emerging Tribal Role in the Conservation Trust Movement) presents this role as an interface between two separate movements: the Native environmental sovereignty movement, aimed at protecting environmental resources located off the reservations, and the conservation trust movement created in response to the deficiencies of environmental law. Part II (Evaluating Four Models of Tribal Participation in the Conservation Trust Movement) seeks to develop the tribal role by evaluating four models of native engagement according to criteria important to both native and non-native interests.

This 43 page publication provides an overview of conservation easements and outlines the steps involved in acquiring easements. It describes how municipalities can acquire easements or work in partnerships with land trusts on easement acquisitions and easement stewardship.

The Model Grant of Conservation Easement and Declaration of Covenants provides users with a state-of-the-art legal document. Built on a foundation of research that identified working (and failing) easement practices around the country and fine-tuned in response to user experiences and feedback over many years, no easement document has received more peer review. The expansive commentary explains the reasoning behind every provision, instructs on use of the model, and provides a wealth of alternative and optional provisions. WeConservePA guide. 4 pages.

Draft for review and comment.

How does decrease or increase in market value of land resulting from establishing or amending an easement relate to the conservation easement’s value? What do we mean when we refer to “value”? This guide explores these questions.