The Conservation Easement or conservation agreement is the legal instrument most frequently chosen by landowners to protect the natural resource values of their property by limiting certain uses on their land. With a conservation agreement in place, a landowner can realize substantial income and property tax savings, while retaining the rights to sell or bequeath their land.
When a landowner transfers selected rights through a conservation agreement, he or she establishes safeguards against uses of the land that could damage its productive, ecological, scenic, recreational, or natural resource values. The Land Trust holds those rights, but is prohibited from ever using them, and it accepts perpetual responsibility for protecting the land’s specified conservation values. A conservation agreement also called a conservation easement may be transferred to a land trust by sale or donation.
Fee Simple Donation
All rights to the land are transferred to a qualified conservation organization, such as The Blue Mountain Land Trust, resulting in an income tax deduction for the full appraised value of the land, reduced estate taxes, and elimination of property taxes.
In a "Less Thank Fee Simple Donation", only selected property rights are donated, resulting in the same tax reductions based on the difference in the value of the property before and after the donation.
The donation of a conservation easement to a qualified conservation organization at the death of the owner, through a last will and testament, results in the unrestricted use of land by the owner until death, as well as a possible reduction of estate taxes. On the other hand, the owner continues to have full property tax liability during their life and receives no income tax benefits for the donation.
Reserved Life Estate or Remainder Interest
Property is donated or sold, in whole or in part, to a qualified conservation organization with a deed provision that reserves the right of the owner (and/or specified persons) to use the land, or a portion of it, until death. The owner may claim an income tax deduction for the value of the donation, estate taxes may be reduced, and property taxes are levied only on that portion of the land retained for personal use.
Leaseback: If property is donated to a qualified conservation organization, but with the condition that the granting owner leases back use of the land, such a condition may preclude any tax deduction for the donation.
Sales to Conservation Organizations
A sale at market value realizes full price for the owner, who remains liable for income/capital gains taxes. . Non-profit conservation organizations and protecting government agencies rarely can purchase property at full value for conservation purposes.
The seller selling land at a bargain sale price to a qualified conservation organization yields an income tax deduction equal to the difference between the sale price and the full fair market value of the property, and also lowers capital gains taxes.
An option is a contract between a potential buyer of a property (for example, a Land Trust), and a seller, which reserves the right of purchase to the buyer for an agreed upon price to be paid in a specified period of time. The buyer secures an option in order to gain time to raise funds for purchase. The option cost is forfeited if no purchase ensues.
For protection purposes, a right of first refusal is a legal agreement granting a potential buyer the right (for a limited time) to acquire the property by matching any bona fide offer received.
Protective Conditions: Additional Options
Deed Restrictions can be applied to protect land if no qualified organization is available to hold a conservation easement. Enforcement must be carried out by the owner or the heirs of the owner, leaving little assurance of compliance once the title changes hands. By including a Reversionary interest clause in a deed stating that a title will transfer to a certain named party if deed restrictions are violated, an owner can provide stronger support for deed restrictions. Because no donation is made, no charitable tax deduction results.
A group of landowners can limit the future use of their land through imposition of a restrictive covenant if no qualified organization is available to hold a conservation easement. Neighboring landowners with common conservation goals sign and record this agreement containing protective restrictions. The agreement can be enforced by any of the participating landowners and is binding on future titleholders. In practice, enforcement is often neglected.
This is only a brief summary of the options available to a property owner who wishes to protect his or her property from inappropriate development. For more information, contact your attorney or The Blue Mountain Land Trust.