Conservation Easements

A Conservation Easement is a legally binding agreement that allows a landowner to give up one or more of their rights on a given piece of property for a purpose such as conservation while retaining ownership of the remainder of the rights. The general enabling legislation for Oregon’s Scenic and Conservation Easement Program was first proposed in 1963 passed in 1967 allowing governments agencies to hold easements, and amended in 1975 to allow non-profit corporations to hold easements.

Easements are flexible legal instruments that can be tailored to the particular piece of property, wishes of the landowners, and purpose of the grantee. Conservation easements can be designed to accomplish specific objectives, such as to protect habitat for an individual endangered species; or it can be designed more broadly to protect farmland, open space, views or land that buffers more sensitive core conservation areas. Easements can also be tailored to meet a landowner’s needs, such as the need to build a house in the future for a daughter’s family or the need to continue to derive income from the land through ranching where those uses are consistent with the purposes of the easement holder and/or funders. Conservation easements do not automatically provide for public access unless so specified in an easement.

The core provisions of any conservation easement are the list of activities that are allowed within the easement premises, the list of activities that are prohibited, and the rights given to the easement holder. Most easements restrict uses that would degrade the property’s condition relative to a specific conservation purpose. In some instances, easements require a landowner to take new actions to protect land and water resources; such as fencing a stream to keep livestock out or changing harvest methods to reduce sedimentation. While even less common, easements can also give the easement holder the right to restore and manage the property

Most easements “run with the land,” remaining with the property even if it is sold or passed on to heirs, thus binding in perpetuity the original owner and all subsequent owners to the easement’s conditions. However, easements can be limited to a specific term of years and/or only be transferable with the approval of the landowner.

Like fee interest in land, conservation easements can be donated or purchased. The value of an easement is determined by calculating the difference between the properties’ value without (or “before”) the imposition of the easement and the properties’ value subject to (or “after”) the imposition of the easement. A property’s “before” value is based on its “highest and best use,” which may include the potential value of developing the property as allowed under current land use laws in addition to the value of its current uses. A property’s “after” value is determined based on the value of the land subject to the proposed restrictions on potential development of the property as well as current uses. For example, if a property is zoned for residential development but currently in agricultural use, the “before” value would be based on its appraised value for residential development (which is generally higher than its value for agriculture). If the proposed easement would restrict development but allow agricultural use, the properties “after” value would be based on its appraised value as agricultural land.

Landowners donate or sell conservation easements for three general purposes: 1) to protect their land beyond their lifetime, 2) to receive financial compensation, or 3) to reduce taxes. An easement, unless otherwise specified, binds heirs and other future landowners to the terms of the easement. In this way, it can give peace-of-mind to current landowners interested in the future of a beloved property. Purchase of a conservation easement compensates a landowner for dedicating a portion of their land and rights for conservation purposes. In addition, the easement may qualify for income, estate and property tax savings.

Property taxes for lands with conservation easements are typically paid by the landowner. Because land uses are permanently restricted, land subject to a conservation easement may be worth less on the open market and as such the taxes may be less. Donation of a conservation easement may qualify the landowner for a federal charitable income tax deduction under IRS section 170(h) provided that the easement: 1) comply with state law requirements for easements in land; 2) be conveyed to an organization qualified to hold easements; and 3) be conveyed “exclusively for conservation purposes” in perpetuity. Under the IRS rules, the donor is responsible for obtaining an independent appraisal to substantiate the value of the easement for tax purposes, and the IRS has published rules as to what constitutes a “qualified appraisal” and a “qualified appraiser” for such purposes. Such a tax reduction can make a critical difference in the ability of heirs to keep the land in the family; the alternative has often been subdividing the land to pay heavy estate taxes.

In a conservation easement, a landowner (grantor) voluntarily agrees to sell or donate certain rights associated with his or her property — and a qualified entity, typically a private organization or public agency (grantee), agrees to hold the easement. The terms of a conservation easement are typically set jointly by the landowner and the grantee.

In Oregon, conservation easements can be held by non-profit land trusts, federal, state and local agencies; and tribes (ORS 271-715 through 271.795). Most typically, conservation easements are held by Land Trusts. From the grantees’ perspective, an easement may be preferable to outright acquisition for three reasons: 1) they can cost less per acre, 2) reduce the management responsibilities of the grantee, and/or 3) they can be applied to a portion of a property rather than an entire property. In other situations, easements may be the only option a landowner is interested in considering.

The actual benefits of any given easement depend on the rights and restrictions relative to the specific conservation purposes the easement holder is trying to achieve.

To determine the potential benefits of a given easement a series of questions should be asked about the property and conservation purposes, the legal rights and restrictions, and the organization or agency entering into the easement.

The Property and Conservation Purposes:

• Does this property contain species or habitat of conservation concern?
• Does the property currently meet species habitat requirements or serve to maintain watershed conditions?
• Are the desired property conditions restorable?
• How would maintaining or improving conditions on the property improve conditions in the watershed?
• Does it complement existing or planned future conservation actions in the area?
• Are the surrounding land uses compatible with conservation of the species, habitats, or desired conditions on the easement property?

Legal Rights and Restrictions:

• Will the legal rights and restrictions contained in the easement reduce threats and/or address the needs of the species, habitats or habitat functions identified as important on the easement premises and/or surrounding lands?
• Are the easement’s rights and restrictions clear enough to enforce?
• Are there objective, measurable, repeatable, and cost effective ways to monitor the restrictions and requirements in the easement?
• Are these monitoring methods sensitive enough to detect significant changes in conditions?

Organizational:

• Does the easement advances the organization or funder’s goals
• Does the organization have staff and/or volunteer capacity to enforce the easement?
• How will ongoing easement responsibilities be funded?

In general

The rights and restrictions in easements can result in one of three potential levels of conservation benefit:

1. Reducing a potential negative decline in conditions by limiting the extent of future activities
2. Maintaining a properties’ current condition by prohibiting new activities
3. Improving conditions through passive restoration (based on restrictions in uses), or through active restoration (based on required actions of owners and/or restoration and management rights given to grantee).

Enforcing a conservation easement is a significant responsibility. The private organizations or public agencies who hold conservation easements must commit staff and resources to monitor the land and ensure easement terms are followed now and into the future. To address this responsibility many private easement holders set funds aside in an endowment to support easement monitoring and any additional projected annual stewardship needs. An easement monitoring and enforcement program with yearly visits and good communication generally results in better easement compliance.

To enforce an easement, clear terms and objectives are important. It is common practice to complete a baseline report that documents the condition of the property at the time the conservation easement is entered into. Changes in the condition of the property over time can then be measured against the information in the baseline report. The terms of an easement must include a provision for how the grantee will notify the grantor of a violation, how much time the grantor has to remedy the violation, and what actions will be taken if corrective measures are not completed. If there is a dispute between the grantor and grantee over an alleged violation, the grantee must be prepared to resolve the issue with the landowner either through mediation, arbitration, or litigation. The specific process for addressing disputes should be covered in the terms of an easement.