Conservation Easements

A conservation easement is a practical way for landowners to protect land from inappropriate future development while retaining their ownership. Easements permanently protect land from uses that could damage or destroy its scenic, recreational, ecological, agricultural, woodland, or historic values. Easements are donated to a non-profit conservation organization such as Great Works Regional Land Trust (GWRLT) or a public agency, which inspects the land periodically and enforces the restrictions in perpetuity. Each easement is tailored to fit the natural characteristics of the land, the personal needs of the owners, and the objectives of the conservation organization or agency.

Here are some answers to frequently asked questions about conservation easements.

As a landowner, what is my role in defining the terms of a conservation easement?

As a landowner, you have certain rights to use and modify the land and natural resources of your property. Some of these rights—such as mining, water, and residential development—can be transferred to others, and used or taxed separately from the land itself. A conservation easement is based on this principle of separating land ownership rights. A conservation easement is a legal agreement between a landowner (the Grantor) and an entity such as Great Works Regional Land Trust (the Grantee or Holder). The agreement separates the right to exercise more intensive uses— such as construction, subdivision, and mining—from other rights of ownership. These “development rights” are then transferred to the Holder through the conservation easement deed. The holder agrees to retain but not use the development rights and to ensure that they are not used by anyone else. Conservation easements are generally granted for all time and apply to the land regardless of who may own it in the future.

Land under easement is still privately owned and managed. Typically, it is used for agriculture, forestry, wildlife habitat, scenic views, watershed protection, open space, recreation and/or education. These uses can be combined with limited residential uses. Working together, the landowner and the Holder determine the appropriate land uses, which are then detailed in the easement deed.

What uses are prohibited on easement land?

Most easements prohibit commercial, industrial and mining uses of the land. Other possible prohibitions include: changing the topography, such as by dredging and filling in wetlands or shorelines; disturbing wildlife habitat or a particular species of plants or animals; clearcutting of forested lands; removing topsoil and other surface or sub-surface materials; and constructing new residential, commercial, or industrial buildings.

What uses are permitted?

Resource protection easements permit activities necessary to preserve the natural resources, and in many cases, encourage responsible agriculture and forestry. Limited development easements usually permit residential development to a lesser extent than local zoning, while preserving important open space or scenic values. Any use not specifically prohibited is permitted though permitted activities are usually required to be conducted in a manner consistent with the overall purpose of the easement.

The prohibited and permitted uses are jointly negotiated and agreed upon by the landowner and the Land Trust and written into the easement.

Who accepts and enforces conservation easements?

According to Maine state law, easements can be accepted and enforced by conservation organizations such as Great Works Regional Land Trust. The Trust is a private, independent, membership supported group that exists for the public benefit. As a non-profit charitable corporation under state law, with 501(c)(3) status under the federal
Internal Revenue Code, the GWRLT is qualified to accept conservation easements or other gifts. Public agencies such as towns, watershed districts and the Maine Bureau of Parks & Recreation also hold easements.

Does granting a conservation easement give the general public the right to enter my property?

Not unless it is written into the deed. Most easements do not expressly allow public access and let the landowner decide whether or not to allow individuals or groups on the land. Sometimes landowners choose to give the public the right to cross the property in a specific area. This right is particularly appropriate when part of the land has been used traditionally for public access to the sea or other body of water or where a trail system traverses the land.

Does the easement restrict my ability to sell, will, or give my land in the future?

Land protected by easement can be sold, given, or otherwise transferred at any time. Transfer of ownership will not affect the integrity or enforcement of the easement. This is one of the key benefits to a conservation easement —it protects the land “in perpetuity.”

Are there financial benefits to donating a conservation easement?

Income taxes: Donation of development rights through an easement may constitute a charitable gift deductible for federal income tax purposes. The value of the gift determined through a qualified appraisal, is equal to the difference between the fair market value of the property before the easement is granted and its value after the easement is granted.

To be deductible, an easement must be permanent, meet certain minimum conservation and public benefit tests established by the federal government, and be donated to a “qualified” holder such as Great Works Regional Land Trust.

Estate taxes: State and federal estate taxes on unrestricted land can be so high that the heirs are often forced to sell some or all of the land just to pay the taxes. An easement can reduce the market value of property significantly, often to the extent that estate taxes are reduced or eliminated. Thus, an easement may enable your heirs to keep land that they otherwise would have to sell.

Gift taxes: When a person gives land to someone who is not his or her spouse, the gift is subject to federal gift taxes if its value exceeds the maximum tax free amount. Lowering the value of the land though a qualified easement may allow the owner to give more land in any one year without incurring a gift tax, or it may help reduce the amount of tax imposed.

Property taxes: Assessors in Maine are required to take conservation easements into account when determining the just value of a property. In most cases, the easement is more restrictive than zoning and otherwise possible land uses, and thus will reduce the assessed value and property taxes. In addition, property protected under a conservation easement is likely to qualify for reduced taxation under Maine’s Tree Growth or Farm & Open Space Laws.

Conservation easements are not just for wealthy people with huge tracts. At today’s land values even a few acres can be a very significant asset, while defining the character of much of the surrounding terrain. The tax benefits on a larger property may make the difference between selling to pay estate taxes or keeping the land in the family.

How are conservation easements enforced?

The Holder must monitor easement-protected lands at least once each year to determine that the restrictions have not been violated. Careful monitoring records are maintained by the Holder. If the Holder discovers a violation during monitoring, it immediately notifies the landowner and takes steps to halt the violation and have the land restored. Specific procedures for enforcement can be outlined in the easement document.

Does protection cost anything?

Yes. First as mentioned above, the holder must keep watch over the land and be prepared to defend the rights it has been given to protect. To do this the GWRLT has established a Stewardship Fund to pay for documenting the resources being protected, monitoring the property, and if necessary correcting any violations that may occur. A donor of an easement is asked for a donation to establish an account for the property. The Trust also raises money for the fund to assist landowners who are unable to make a donation. The Stewardship Fund acts as a kind of insurance policy ensuring that the donor’s intent for the property is carried out and that the Trust has the financial resources to meet its stewardship obligations.

The GWRLT appreciates the assistance of Maine Coast Heritage Trust and Kennebec Land Trust in the writing of this information.