Frequently Asked Questions - Land Conservation
A conservation easement deed is a permanent, legally binding agreement between a landowner and a qualified conservation organization or public agency that restricts use of the land to protect its significant natural features. In New Hampshire this is authorized by RSA 477:45-47.
As a landowner, you continue to own and have the right to manage your land while giving up the right to engage in certain intensive uses of the property. You will continue to be responsible for paying the local property taxes on the parcel.
According to New Hampshire state law, conservation easements can be held by a qualified non-profit conservation organizations or public agencies and municipalities able to ensure that the property is protected in perpetuity. Private groups such as the Forest Society, the NH Audubon Society, The Nature Conservancy, and local land trusts are equipped to receive and enforce conservation easements. Public agencies such as town conservation commissions, county conservation districts, the NH Department of Fish and Game and the NH Division of Forests and Lands also hold conservation easements.
Typically, conservation easements held by the Forest Society allow the landowner to continue to use the land for agriculture, forestry, non-commercial outdoor recreation, wildlife habitat management and all other uses that are compatible with the conservation goals for the property and not specifically prohibited by the easement terms.
Conservation easements generally prohibit subdivision and development, commercial and industrial activities, except agriculture and forestry, mining and excavating, filling or disturbance of wetlands, and disposal of man-made waste or hazardous materials.
When you work out the details of the easement with the easement holder, you should try to anticipate as many future needs and possibilities for the land as possible. Specific exceptions may allow an additional house lot on the property or the right to build and maintain roads and buildings. Sometimes landowners put conservation easements on only a portions of their property reserving full development options for the balance of their land.
The conservation organization that holds the easement has the right to enter the property to monitor its condition and the obligation to enforce the easement, in court if necessary, to ensure that the terms are upheld and the natural resources are protected.
An executory interest is a secondary or backup easement in the land held by another conservation organization. The executory interest holder is responsible for ensuring that the primary easement holder monitors the property and enforces the terms of the easement. If the primary holder fails to enforce the easement for any reason, the backup holder can take enforcement action to restore the property and can even take over the easement from the grantee. As a landowner you may choose which organization is the primary easement holder and the executory interest holder.
The Forest Society knows that the best way to prevent problems over conservation easements is to maintain a positive relationship and good communication with the landowners. The conservation organization that holds the easement has the authority and obligation to ensure that the natural resources are protected in perpetuity. Easement holders are responsible for regularly inspecting the site to make sure the property is maintained in compliance with the easement. If activities on the land violate the agreement, the easement holder may take action to halt the damaging activity.
No, generally donated conservation easements do no automatically give the public any rights to enter or use protected property. Most easements let the landowner decide to allow public access. However, if an easement is purchased, guaranteed public access for pedestrian recreation may be required.
No, you may sell or convey the land to a different owner at any time at any price. Conservation easements run with the land forever, so all future owners will be required to follow the easement terms.
To help cover the costs of insuring your wishes for the future of your land, the Forest Society requests a donation to the Easement Stewardship Endowment. This money provides funds for monitoring the property and for any legal expenses that may be necessary to enforce the terms of the easement.
Conservation easements may involve expenses for items such as legal fees, survey and appraisal costs or other professional services. The Forest Society may charge fees for the service of easement drafting and baseline documentation preparation.
Yes, by donating a conservation easement you may benefit in several possible ways. Consult a qualified professional to find out how these possibilities apply in your personal situation.
Federal income taxes:
- If you donate some or all of the value of the conservation easement to a qualified organization, you may be eligible to take a federal income tax deduction for the value of the charitable gift. To be deductible for federal income tax purposes the easement must meet certain standards established by the federal government.
Federal Estate Taxes:
- When a conservation easement is placed on a property, it typically lowers the property’s value for federal estate tax purposes and may decrease estate tax liability. Therefore, easements may help heirs avoid being forced to sell off land to pay estate taxes and enable land to stay in the family. Under certain situations, conservation easements can be granted after the death of the landowner and still provide estate tax benefits.
Federal Gift Taxes:
- The IRS requires recipients to pay taxes on gifts over a certain value. If you want to give your land to your children without requiring them to pay taxes on your gift, you may need to give the land in installments to stay below the taxable value level. Conservation easements may help to reduce the value of your property, making it possible for you to give all of your land to your children more quickly.
Local Property Taxes:
- Conservation easements usually reduce property value, which, in turn, may reduce property tax assessment. If your land is already enrolled in the Current Use Assessment Program, you would probably not see any further reduction in property taxes as the result of granting a conservation easement. If your land is not eligible for the Current Use Program because it is less than 10 acres, you may wish to apply for a Conservation Restriction Assessment and may see a reduction in your local property tax.