A conservation easement is an interest in land, created between a landowner and a qualified easement holder, that restricts the uses and activities that may take place on the property in order to protect the conservation values of the property. For instance, if the conservation value of the property is agricultural land, a conservation easement would restrict uses and activities which would be contrary to using the land for productive agricultural uses.
Conservation easements can be useful to protect or preserve forests, wetlands, wildlife habitat and agricultural land and generally benefit the public because the result is protection of these treasured areas. They have also been used as a tool for the protection of historic sites. Conservation easements are usually perpetual, meaning they last forever so, granting or acquiring such a property interest should not be taken lightly.
At its core, conservation easements are like any other non-possessory right in land. They restrict the use of land and have been characterized as a negative easement or negative servitude. Washington put to rest any doubt regarding the enforceability of these easements when it passed the Open Space Tax Act (RCW 84.34). This Act authorizes the acquisition of property interest for land protection by municipalities and municipal corporations, historic preservation corporations or non-profit nature conservancy corporations or associations. It also allows for permission from the grantee to be required before building or improving the land. Even with a conservation easement restricting the uses on property, the property may still be sold or transferred subject to the terms of conservation easement.
One might question why anyone would ever give up their ability to use their property in certain ways with a conservation easement. Some people donate conservation easements for certain federal and state tax breaks. For instance donors may be entitled to an income tax deduction, gift or estate tax deduction, and property tax relief. Anyone interested in such a donation and the economic benefits which may be available should consult an accountant or tax advisor before making such a decision. Local critical areas ordinances often require that a conservation easement be dedicated to the city or county (as applicable) over critical areas so that these areas remain protected. On the federal level, programs like the Conservation Reserve Enhancement Program (CREP) may motivate landowners to grant a conservation easement once the land is out of agricultural production. Also, people also donate conservation easements as a legacy to their community for the benefit of generations to come.
Indeed, there are a multitude of reasons to participate in either granting or acquiring a conservation easement. With careful consideration the result can really be mutually beneficial to both parties involved.
Simi Jain, Attorney
Disclaimer: This article and blog are intended to inform the reader of general legal principles applicable to the subject area. They are not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.
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