Protect Your Land for Future Generations
In recent years, conservation easements have become a key vehicle for protecting land in the United States, covering a total of 47 million acres by the end of 2010. One of the drivers of these easements is the rapid development and urbanization of rural areas. Conservation easements can help farmers continue to farm while withstanding the financial pressure of urban growth and maintaining the quality of life in communities. Of the 55 counties in West Virginia 14 of them have conservation easements totaling 164 easements as of 2014. The Eastern Panhandle Counties (Berkeley, Jefferson, and Morgan) have a total of 96 easements or 59% of the easements in the state. The Land Trust holds or co-holds 48 of them, covering 4,780 acres.
What is a conservation easement?
A conservation easement enables property owners to protect into the future what they value about their property. It can preserve the land for farming, for example, or simply protect the view. The easement is a legal agreement between a landowner and a land trust or county farmland protection board (FPB) that permanently protects specific qualities of the land while allowing the landowner and successor owners to continue to own and enjoy the property. The landowner retains the title to the property and may use it subject to agreed restrictions that protect the land from future real estate development or commercial or industrial use. The specific restrictions are negotiated for each easement and can provide for very limited future construction, e.g, setting aside an identified area for an additional residence. Unlike a simple deed restriction, a conservation easement ensures permanent monitoring and enforcement by a third party with resources – the land trust and/or FPB. A conservation easement does not grant public access unless the easement donor specifically agrees to provide for it.
How long does a conservation easement last?
Because an easement protects the land in perpetuity, all future landowners are bound to the restrictions. The easement is created in the form of a deed. This Deed of Conservation Easement is recorded in the county land records. Because it is recorded with the property deed records, future landowners are put on notice of the land protections that have been recorded.
Who owns the land?
The easement donors continue to own their property, retaining authority just as they did before the easement was recorded, subject to the restrictions in the easement. The land can be transferred, sold, and inherited as before.
How Is the Easement Monitored?
The land trust or farmland protection board prepares a baseline documentation report, complete with photos and GPS readings, that establishes the condition of the property at the time of the easement and provides the basis for annual monitoring visits. The landowner has a copy of this baseline documentation report.
What is the value of a conservation easement?
The difference between fair market value of the land before the easement is created and the value of the land after the easement represents the fair market value of the conservation easement. Easement value results from giving up the development rights. A "qualified appraisal" determines the value for payment or tax benefits.
A county Farmland Protection Board can pay for all or part of the easement value, subject to availability of funds (generated by the real estate transfer tax) and matching funds from the USDA Natural Resources Conservation Service or, if the property is in a congressionally-recognized Civil War battlefield, from the American Battlefield Protection Program.
Tax Benefits of a Conservation Easement?
Under the IRS code, qualified conservation easement donations to a non-profit organization can be treated as charitable gifts. If the property has been owned for more than one year, the portion of the value of the donation not paid for can be deducted against up to 50 per cent of the donor’s income, with any excess carried forward for up to fifteen years. There are also potential estate tax benefits, since donation of an easement can reduce the value of the property upon which estate taxes are calculated. Finally, West Virginia Code specifies that land under a conservation easement should be taxed as agricultural land. If the Property is not already receiving farm-use valuation, this can result in lower property taxes.
Frank and Sylvia Citizen own 100 acres, which they enjoy and do not want to see developed. The land already has one house and some outbuildings. They consider a conservation easement permitting one or two additional houses. An appraisal establishes that the difference in the value of the property when it can be developed and when it cannot is $5000 per acre, or $500,000 for the entire 100 acres. (The amount would have been less had they decided on reserving areas for two additional houses.) They find they have some options:
- They can apply to their county Farmland Protection Board. Depending on the availability of money and how their property scores as farmland under the criteria of the FPB and the USDA’s Natural Resources Conservation Service, they may be able to get all or part of the $500,000 from the FBP/NRCS.
- If they want to protect their land from future development and money from the FPB/NRCS is either not of interest or unavailable, they can still benefit from a federal tax deduction by donating an easement to the land trust and/or the FPB.
In either case, the land trust or the FPB prepares a baseline documentation report that documents the features of the property and establishes an area around the house where additional residential-related structures or farm outbuildings can be constructed. The couple obtains an agreement from their bank to subordinate the existing mortgage on the property to the conservation easement and negotiates the details of the conservation easement. After the easement is closed and recorded, if they have not received full payment from the FPB/NRCS, Frank and Sylvia obtain an updated appraisal to use for the tax deduction for the year in which the easement was closed, and they can carry the balance of the deduction forward to future years.
As growth in the Eastern Panhandle continues, conservation easements will be part of the future and will continue to be an important part of protecting our heritage and our quality of life and preserving the natural beauty of our landscape.