When you own a property, you have a bundle of rights. For example, you can sell, lease, mortgage, rent, donate the land, subdivide the land, hunt and trap on it, develop it, mine it, and transfer it via will or transfer part of it and retain a life estate.
When you put the land under a conservation easement, you voluntarily give up some of those rights such as development and mining. But you continue to remain in control of the land, in possession of the property rights you retained, and you can have peace of mind about the future use of the land without government interference and regulation. You decide how it is to be used.
An easement restricts future activities, especially development, in order to protect the conservation values of your land for as long as the laws remain in effect and to control how it is used.
- What is a conservation easement?
A conservation easement is a voluntary legal agreement to preserve land in perpetuity (legal term meaning forever). A conservation easement is a deed but it does not transfer land ownership. Instead the deed spells out a landowner's commitments to protect the existing character of his property. It is a flexible document and may be written to protect land in accordance with the landowner's wishes.
- If I give a conservation easement, do I still own and control my own property?
Yes. Only the specific use rights that you choose to donate are removed from your property. You can still own, build upon, sell, lease, mortgage, farm, or otherwise use your property consistent with the terms of the conservation easement.
- Does a conservation easement require me to allow public access to my land?
No. The conservation easement does not give the public any rights to your land unless you decide to include such rights in your easement.
- To whom is a conservation easement given?
A conservation easement is enforced by the organization or public body to which it is donated, by court action if necessary. Some easements name another entity as a backup enforcer in case the original donee organization is unable or unwilling to ensure compliance with the easement. If the original donee organization ceases to exist, the easement is transferred to a similar entity which has the power to enforce it. The organization which holds the easement is responsible for monitoring it on a regular basis to assure that the current landowner is complying with the terms of the easement.
- How is a conservation easement enforced?
Rensselaer Land Trust is a nationally accredited land trust and thereby abides by the Land Trust Alliance’s Standards and Practices and IRS requirements to legally defend the conservation easements that it holds.
- What is the difference between a conservation easement and a "deed restriction" or “right of way”?
Conservation easements are conveyed by deed, have a conservation purpose, are in perpetuity (legal term meaning forever), require stewardship and monitoring, may only be extinguished by a court of law, are permanent and may offer tax benefits. It is difficult to remove a conservation easement. Conservation easements are custom to your vision for your land and are a partnerships between you the landowner and Rensselaer Land Trust. The conservation easement terms run with the land, meaning all landowners present and in the future are bound by the terms. In accepting a conservation easement, Rensselaer Land Trust commits to defending the conservation easement terms in perpetuity.
Conservation easements are established under Article 49, Title 3 of the Environmental Conservation Law and Section 247 of the General Municipal Law and enjoy a special legal status.
Deed Restrictions define specific limits regarding allowable uses and development of a property. It is established by a landowner on a property's title, typically when the landowner is selling the land and wishes to exert some influence over its use, usually to benefit adjacent lands to which he or she intends to retain title. Deed restrictions are subject to interpretation and nullification by the courts, and are most practical in situations where the original landowner or the landowner's heirs own adjacent land and are in a position to observe and enforce any violation. In some cases deed restrictions can be easily eliminated by mutual consent of landowners or court action. Deed restrictions do not have any tax benefits.
Under Section 345 of the Real Property Law, deed restrictions expire after 30 years unless they are recorded, whereas conservation easements are valid in perpetuity. Also, deed restrictions may only be enforced by adjoining landowners who directly benefit from them, while conservation easements can be enforced by entities which do not own adjoining land and do not necessarily derive an economic benefit from them.
Why choose a deed restriction? It’s an alternative when a conservation easement is not an option for properties that do not qualify for a conservation easement. A deed restriction can provide land with a degree of protection.
- Can I donate a conservation easement and still develop my land?
Yes. A conservation easement can be used to control the number, location, and designs of buildings, thus assuring that a quality development plan is maintained in perpetuity. Used in this manner, an easement may be able to enhance the value of each lot created.
- Can a conservation easement assure the protection of open space set aside in a "cluster development"?
Yes. One of the biggest concerns that towns have in approving cluster developments is that the land set aside as "open space" today may be developed in the future. Requiring a cluster developer to place a highly restrictive conservation easement on land set aside as open space is the most secure way to protect it from development permanently. Each town sets its own ordinances concerning development.
- Will conservation easements reduce my property taxes?
Maybe. Tax assessments are made by local assessors based on the fair market value of property. In fact, much rural land is actually underassessed relative to developed land, in recognition of the fact that undeveloped land does not demand municipal services and that raising the assessments of undeveloped land will tend to place development pressure upon land already being assessed at less than fair market value. Logically, a highly restrictive easement that reduces a property's market value should be reflected in a lower assessment, but this decision falls within the discretion of the local assessor. Whether your land’s tax assessment is reduced depends on how it was assessed prior to the conservation easement.
Land under a conservation easement that is also enrolled in either the Agricultural Districts Law (Section 25AA of the Agriculture and Markets Law) or the Forest Tax Law (Section 480-a of the Real Property Tax Law) will likely not result in a further reduction in tax assessment. Assessors are free to use their discretion regarding easements, while the agriculture and forestry exemptions are mandatory.
- Are there other tax advantages in donating conservation easements?
Possibly. Please see sections entitled Conservation Easement Tax Credit and Federal Tax Incentives.