In the United States, a conservation easement (also called a conservation covenant or conservation restriction) is an encumbrance — sometimes including a transfer of usage rights (easement) — which creates a legally enforceable land preservation agreement between a landowner and a government agency (municipality, county, state, federal) or a qualified land protection organization (often called a "land trust"), for the purposes of conservation. It restricts real estate development, commercial and industrial uses, and certain other activities on a property to a mutually agreed upon level. The property remains the private property of the landowner.
The decision to place a conservation easement on a property is strictly a voluntary one where the easement is sold or donated. The restrictions of the easement, once set in place, "run with the land" and are binding on all future owners of the property (in other words, the restrictions are perpetual). The restrictions are spelled out in a legal document that is recorded in the local land records and the easement becomes a part of the chain of title for the property. Appraisals of the value of the easement, and financial arrangements between the parties (land owner and land trust), generally are kept private.
The primary purpose of a conservation easement is to protect land from certain forms of development or use. Lands for which conservation easements may be desirable include agricultural land, timber resources, and/or other valuable natural resources such as wildlife habitat, clean water, clean air, or scenic open space. Protection is achieved primarily by separating the right to subdivide and build on the land from the other rights of ownership. The landowner who gives up these "development rights" continues to privately own and manage the land and may receive significant state and federal tax advantages for having donated and/or sold the conservation easement. Perhaps more importantly, the landowner has contributed to the public good by preserving the conservation values associated with their land for future generations. In accepting the conservation easement, the easement holder has a responsibility to monitor future uses of the land to ensure compliance with the terms of the easement and to enforce the terms if a violation occurs.
Although a conservation easement prohibits certain uses by the landowner, such an easement does not make the land public. On the contrary, many conservation easements confer no use of the land either to the easement holder or to the public. Furthermore, many conservation easements reserve to the landowner specific uses which if not reserved would be prohibited. Some conservation easements confer specific uses to the easement holder or to the public. These details are spelled out in the legal document that creates the conservation easement.[1]
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Landowners who donate a "qualifying" conservation easement to a "qualified" land protection organization under the regulations set forth in 170(h) of the Internal Revenue Code may be eligible for a federal income tax deduction equal to the value of their donation. The value of the easement donation, as determined by a qualified appraiser, equals the difference between the fair market value of the property before and after the easement takes effect.
To qualify for this income tax deduction, the easement must be: a) perpetual; b) held by a qualified governmental or non-profit organization; and, c) serve a valid "conservation purpose," meaning the property must have an appreciable natural, scenic, historic, scientific, recreational, or open space value. As a result of new legislation signed by President George W. Bush on August 17, 2006 (H.R. 4 - The Pensions Protection Act of 2006), in 2006 and 2007, conservation easement donors may deduct the value of their gift at the rate of 50% of their adjusted gross income (AGI) per year. Further, landowners with 50% or more of their income from agriculture may be able to deduct the donation at a rate of 100% of their AGI. Any amount of the donation remaining after the first year can be carried forward for fifteen additional years (allowing a maximum of sixteen years within which the deduction may be utilized), or until the amount of the deduction has been used up, whichever comes first. With the passage of the Farm Bill in the summer of 2008 these expanded federal income tax incentives were extended such that they also apply to all conservation easements donated in 2008 and 2009.
Land conservation advocates have long tried to enact additional tax incentives for landowners to donate easements, above the federal charitable deduction (and state tax deduction in states that conform to federal tax process). There has been discussion of creating a federal income tax credit for easement donors since around 1980.(comments?) However, no federal tax credit has been enacted. States, however, have moved ahead to grant credits that can be used to pay state income tax to donors of qualified conservation easements. In 1983, North Carolina became the first state to establish such a program.[G.S.§105-151.12]
Attorney Philip Tabas of The Nature Conservancy promoted the state tax credit idea widely in the 1990's. In 1999 four state legislatures enacted state tax credit programs (Virginia, Delaware, Colorado, and Connecticut, in that order). South Carolina and California followed in 2000. Several other states have followed since.
For landowners with little income subject to state taxation, a tax credit is a hollow reward for reducing the value of real property by donating a conservation easement. To respond to this, Colorado conservationists made their state tax credit transferable in 2000 -- that is, the donor/landowner can sell her/his credit to other parties; the buyers then use the purchased tax credit to pay their Colorado income tax. This is appealing to buyers because the credit is sold at a discount from face value. Virginia followed by enacting transferability in 2002. Delegate Bill Howell (now Speaker of the Virginia House of Delegates) introduced HB1322, which had been suggested to him by conservationists Charles Davenport and Phil Hocker. HB1322 was enacted, effective retroactively to 1Jan2002. Other states have followed since.[2] However, "caps" on the amount of credit an easement can generate, and other restrictions, limit the scope of the different state tax credit programs in varying manners.
In the states where credit for conservation land donations is transferable, free markets have arisen. Brokers assist landowners with excess credit to contact buyers, and the brokers often handle payments and paperwork to protect the principals, and to ensure that transfers are fully reported to the state tax authorities. The federal and state tax treatment of profits from sale and use of transferable tax credit have been the subject of extensive discussion and the issuance of several guidance documents by the Internal Revenue Service.[3]
The New Mexico state income tax credit was originated in 2003.[SB 581] New transferability legislation, effective January 1, 2008, applies retroactively to conservation easements effected from January 1, 2004.[4]
The Virginia transferable credit program is far the largest among the States in dollar value of property conserved. By the end of 2010, $2,512,000,000 of property value had been donated as easements in Virginia for which tax credit was claimed.[5] The qualifying easements cover over 516,000 acres (2,090 km2) of Virginia landscape.[6] The Virginia program now (2011) grants about $110 million of new tax credit each year. The credit allowance is 40% of the appraised value of the easement donation, so this equates to $275 million of property value donated per year for protection of wildlife habitat, farmland and woodland, and scenic open space -- in perpetuity. The other state tax credit programs are smaller in dollar measurement, but are very significant in the area and the conservation values that they cause to be protected. The concept of state tax credit action (in the absence of a federal tax credit) that Philip Tabas and The Nature Conservancy promoted in the 1990s has borne remarkable fruit, and continues to expand today.
For landowners who will leave sizable estates upon their death, the most important financial impact of a conservation easement may be a significant reduction in estate taxes. Estate taxes often make it difficult for heirs to keep land intact and in the family because of high estate tax rates and high development value of land. It may be necessary to subdivide or sell land for development in order to pay these taxes which may not be the desire of the landowner or their heirs. A conservation easement can often provide significant help with this problem in three important ways:
Some states (Colorado, Virginia, Maryland, and North Carolina) offer a state income tax incentive and many states offer property tax incentives to conservation easement donors.
In 1974, Suffolk County in New York enacted the first PACE (also known as purchase of development rights or PDR) program. King County in Washington and the states of Maryland, Massachusetts, and Connecticut quickly followed suit. As of 2003, the PACE program operates in 23 states, including 19 statewide and more than 45 local programs.[1]