Even the most experienced land buyers may not know about conservation easements.
In fact, we didn’t know a lot of what is covered below until we began researching this blog post!
A conservation easement is a voluntary agreement that permanently limits the use of the land to protect its conservation values.
Placing a conservation easement on a piece of land allows the owner to continue to control it (but usually not develop it) and also take advantage of a tax deduction.
This deduction is calculated according to the value that the land would have had if it had been developed.
In general, the limits of a conservation easement persist even if it is passed to an heir or sold in a sale.
Now, conservation easements have gotten quite a bit of notice in the past four years.
This is, in part, because of Donald Trump.
He created a conservation easement for his Mar-A-Lago estate in 1993 and has popularized this structure.
When the property was appraised at $25 million in 1993, he donated an easement that prevented him from selling antiques inside the historic buildings or adding more buildings to the compound.
This easement ultimately reduced the valuation of Mar-a-Lago to $19.25 million.
Trump received a tax deduction for the difference of $5.75 million once the easement was in place.
Despite what you may think of this particular case, you can probably see the benefit.
If you’re looking to donate a conservation easement yourself, start by watching this video:
Then, you can read about the top conservation easements pros and cons and decide if it’s for you!
Pros of Conservation Easements
You receive a tax deduction
The main benefit of a conservation easement (aside from protecting the land!) is the tax deduction you’ll receive.
Typically, you can deduct 50% of your income for 16 years up to the appraised value of the easement.
So, if you make $60,000 a year, you can deduct $30,000 for 16 years.
This results in total deductions of $480,000.
However, if the appraised value of the easement is less than $480,000, the total deductions will be capped at the value of the easement.
You can customize conservation easements to meet your needs
Initially, conservation easements sound like you’re giving up a lot of rights.
However, they’re not as inflexible as they may sound.
You can entirely customize the easement depending on your plans and goals for your property.
The goal of the conservation easement is for everyone to benefit – both you (as the owner) and the land trust or government agency.
One big pro is that you’ll still have flexibility and control over your property.
Public access isn’t created with a conservation easement
Some landowners opt for public access as a condition of their conservation easement.
However, this is a rare part of the process, and it is not in any way a “rule of thumb.”
If you’re concerned about public access being an obstacle in the conservation easement process, it isn’t a requirement of a conservation easement.
Ultimately, the easement will follow your needs as the property owners.
It won’t dictate what others can or cannot do on your property.
Simply put, your land is still private land.
You’re just preventing future development by foregoing development rights on the land you already own.
You’re not in any way creating a public park or other recreational space.
An easement doesn’t give the government access to your land
This is another common concern!
Just because you’re creating a conservation easement, it doesn’t mean you’re giving the government direct access to your land (in most cases).
The majority of conservation easements are held by a non-profit land trust.
Non-profit land trusts are 501(c)(3) organizations designated by the IRS, so they have a similar role that other NGOs and tax-exempt companies do in that they provide charitable work.
The instances where a government entity holds an easement would be rare.
The most that would happen is that the government would scrutinize or audit your conservation easement transaction, yet that could also occur if you worked with a non-profit or made unusual changes to your financial profile.
Long story short?
A conservation easement isn’t “signing your land over to the government” by any stretch of the imagination.
You don’t have to sacrifice agricultural production
Some people shy away from conservation easements because they profit off of the land in the form of agricultural production or ranching.
However, this doesn’t mean you can’t have an easement.
If your property is productive in its current form, then you should absolutely keep it that way; just be sure to work it into your easement.
Remember, conservation easements can be flexible and work around your goals.
All the conservation easement does is prevent future development in other ways.
In most cases, you can still work on the land in the way you’ve already been doing so as long as it’s outlined in your easement.
To qualify as a rancher or farmer, you must receive more than 50 percent of your gross income from the “trade or business of farming.”
The following activities qualify as farming:
- Cultivating the soil
- Raising or harvesting any agricultural or horticultural commodity
- Handling, drying, packing, grading, or storing on a farm any agricultural or horticultural commodity in its unmanufactured states (but only if the owner, tenant or operator of the farm regularly produces more than one-half of the commodity so treated)
- Planting, cultivating, caring, and cutting down trees for the market
If you meet this criterion and you want your conservation easement to reflect it, then it must contain a restriction requiring that the land remain “available for agriculture.”
It’s also worth noting that, if you qualify as a rancher or farmer, you may be eligible to receive tax deductions of up to 100% of your income in exchange for the conservation easement.
You can financially benefit from a conservation easement (even with a low income!)
Even if your income isn’t high enough to justify the tax benefits, you have options.
A conservation easement may still be a good option for you.
If your parcel of land has high conservation value, then a land trust may pay you for a conservation easement.
There’s a great benefit to the public in preventing land development in certain areas, which is why land trusts may buy the development rights from the landowner using private donations or grants.
While you may not get a tax credit or deduction, you’re getting cash in your pocket.
Some states will also provide conservation tax credits that can be sold for cash.
This allows a landowner to monetize his donation while also providing tax relief to high-income third parties who are willing to purchase the credits at a discount.
Both these routes are pros that you may want to keep in mind if you’re interested in conservation easements but don’t necessarily have a high enough income to receive tax benefits.
Cons of Conservation Easements
The land trust will need to physically inspect your property
Some people don’t like having people on their land constantly.
The bad news is that your land trust will need to physically inspect your land at least once a year.
So, there will be a few inconveniences with a conservation easement.
The hidden pro?
You can make it a condition of your easement that your land trust doesn’t visit you repetitively to review the condition of the property.
Furthermore, most non-profits don’t have the resources to visit multiple times.
They’re unlikely to push this issue because they simply can’t dedicate the personnel.
If you’re sincerely worried about this, then be sure to negotiate your expectations upfront.
Otherwise, you’ll likely find that the once a year inspection is more than enough for the land trust and not all that inconvenient for you!
You can overstate the value of the conservation easement
To claim the tax benefits for a conservation easement (on both the state and federal level), you must file forms to document the transaction.
If the deduction is larger than $500,000, you must provide an appraisal along with IRS Form 8283.
Now, agencies are paying closer attention than ever before to ensure that values are not intentionally or accidentally overstated.
When going through the conservation easement process, you must have a defensible appraisal of the land in question.
So, not only will you have to pay for an appraisal of the property, but you’ll still have to actively avoid overstating the value of your conservation easement.
Both can cost you!
You may not qualify for a conservation easement
Did you know not everyone can take advantage of a conservation easement?
This is one of the largest cons of the entire process.
You can only take advantage of this easement if you meet one of these four categories from a financial standpoint.
The following is found in the IRS Code, Section 1.170A-14(d).
- You are preserving a relatively natural habitat of wildlife, fish, or plants
- You wish to preserve forests or agricultural lands that have open spaces
- You want to allow public access to a portion of your land
- You are protecting the property in response to a clearly delineated government policy that is identified in local open-space plans
In general, conservation easements must provide public benefits.
“Public benefits” include water quality, farm and ranchland preservation, scenic views, wildlife habitat, protecting endangered species, outdoor recreation, education, and historic preservation.
You can choose the incorrect land trust
Not all land trusts are created equal!
For every awesome land trust out there that will work with you every step of the way, there are equally awful land trusts.
Some land trusts want to create benefits that are mutually advantageous.
Others are inflexible and confrontational about your property.
This can put property owners in a tough situation, especially when they’re not familiar with the process.
Of all the conservation easement pros and cons on this list, this is one you can (hopefully) avoid based purely on research.
Land trusts are non-profit organizations that actively work to conserve land.
It is their job to ensure that all the restrictions described in a conservation easement are actually carried out.
The land trust will take legal action (if necessary) to enforce the easement.
Thus, it’s important to select the right land trust and work closely with them to ensure you’ve come to the right agreement and can move forward comfortably.
This is a big decision – don’t take it lightly!
First, if you are a farmer, choose a land trust that offers a proven understanding of forestry practices and agricultural issues.
After all, if this is their specialty, they should show it through their practices.
Next, work with a non-profit that is certified by the Land Trust Accreditation Commission.
Be sure to vet whichever agency you choose (not every land trust works for every single property owner!).
Doing your due diligence can pay off on this one.
Your ability to use your property can change without a structured conservation easement
Sometimes you don’t know what you’ve got until it’s gone, and this is exactly what property owners realize when it comes to conservation easements.
Over the years, landowners have discovered that they’re unable to use their property the way they want after they’ve donated a conservation easement.
Even if you’re fully in control of the negotiation process and able to see what you’re getting before signing, you simply may not realize you may want or need something before the time comes.
Here are some examples of issues that have occurred with conservation easements.
- Restriction on wind turbines or other economically viable technologies
- Inability to use ATVs, snowmobiles, or other recreational vehicles
- No access to inspection records of your property
- Confidentiality breaches such as a public petition for structures or other land uses without your consent
Keep in mind that these issues are rare.
However, they do occur, which means they’re worth acknowledging during the negotiation process.
There may be a limited selection of buyers available
There are so many pros of conservation easements.
However, the relationship that a landowner has with a land trust often complicates the process of selling the property.
As a result, you may find that your pool of interested buyers is limited if you decide that you’re ready to move on from the property.
In some cases, future owners may want to develop the land, which won’t be possible.
In others, they may just want to avoid a third party in the mix.
You may encounter lender problems
Unfortunately, the banking community does not always understand the nuances of conservation easements or conservation easement pros and cons.
Just like buyers, lenders often view conservation easements as a hurdle rather than something that benefits the property as a whole.
As a result, landowners have found that it’s difficult to refinance their property if it has an easement.
Or you may find that you have difficulty with your appraisal or the bank terms with your lending agreement (if one is authorized at all).
Together, these obstacles make it challenging to buy or sell the property.
They may also increase the cost of these actions or make it hard to obtain future financing.
You may lose access to some rights
When you purchase land, you purchase different types of rights.
You may have surface rights, oil and gas rights, mineral rights, and even water rights.
When you create a conservation easement, you may lose access to certain rights.
While you’ll likely retain certain surface rights like farming and ranching, development is almost always limited.
Furthermore, surface mining is almost always off the table and the goal is to protect the land overall.
This can be frustrating for some buyers and even result in the value of your land decreasing to nothing.
Final thoughts
There you have it!
All of the conservation easements pros and cons.
Overall, conservation easements allow people to protect the land that they love – especially private land.
This process provides numerous advantages but must be balanced with the specific disadvantages of each property and landowner.
Doing your due diligence and finding the right land trust are important parts of the process.
In the end, each property and conservation easement is unique, and you’ll want to thoroughly review the pros and cons to make sure it is right for you.
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Disclaimer: we are not lawyers, accountants or financial advisors and the information in this article is for informational purposes only. This article is based on our own research and experience and we do our best to keep it accurate and up-to-date, but it may contain errors. Please be sure to consult a legal or financial professional before making any investment decisions.
Prior to starting Gokce Capital, Erika received a Bachelor of Architecture from the University of Southern California and a graduate degree in Urban Policy from Columbia University. She worked as both an architectural designer and engineer in New York before joining the New York City Department of Housing Preservation and Development.
Erika currently lives in the New York Metropolitan area with her spouse, daughter and cat. She is originally from Chicago and still considers herself a midwesterner at heart.
Erika also loves to read, write and travel (fun fact, she has visited all 50 states and more than 30 countries!). Her new book, Land Investing Mistakes: 11 True Stories You Need To Know Before Buying Land, is now available on Amazon.
Very informative thanks!
Thank you, Will!
Excellent overview as I step into trying to decide what to do with a 22 acre tree farm. Are land trusts a good option for donating the land to an organization and which they manage, but retain family access into the future?
Hello Ava, I would consult with a real estate attorney to see how you may work out an arrangement by which you are still allowed access in the future.
Erika,
I have 2 questions for you…
Scenario 1:
I bought about 10 acres of land and plan to build my primary residence there with a barn. I plan to have some cattle and do some farming, mostly to stock a food bank that I am planning to start.
Question 1: Can I place my property and barn in an Easement? If so, what amount of money should I pay for the easement?
Question 2: How much is a Land Trust costing today? Could I deduct all the expenses since it is for a charity?
Scenario 2:
Question 1: I am a physician and am planning to buy a building that would allow me to expand my practice and possibly, lease other sections to other tenants. Would I be able to do a conservation easement of this property?
Scenario 3:
I own a waterfront home and would like to preserve the land for private access only. Can I put a Conservation Easement on this property, home, or waterfront? What type of Land Trust would I seek and how much could I actually save in taxes each year.
Thank you,
Hello Nancy, I would speak with your accountant and lawyer as well as the local land trust who will be purchasing the conservation easement. I would think scenario 2 would not be allowed, but 1 and 3 may work. You can find a land trust near you by searching the following database: https://www.landtrustalliance.org/find-land-trust
Hi I am about to buy a property in Clarksburg MD it’s 10 acres with beautiful 5 bedrooms house and a nice pool and a the barn.
Questions
1 .this property has conservation eazment
Asking price is not below the market price.
2. Am I allowed to do farming
3. Is conservation easement remove able from property?
Hello Hamid, I would speak with your attorney and real estate agent as well as the land trust that holds the easement. My understanding is that generally the conversation easement cannot be removed from the property.
Can land owner of property with easement put up no trespassing signs on said property?
Hello Rose, I would think so, but you may want to run this by the easement holders to make sure you don’t create a conflict with them.
Hi Erika.
My husband is inheriting 160 acres of farm land. However in the will it states that his nephew has the right to buy the 160 within a year. There is an easement in process that will be finalized in November. The nephew wants to buy before this process is complete. What benefits would my husband stand to lose is he sells the property before the easement is complete? (His nephew inherited another part of the ranch and wants to add the 160 to it.)
Hello Loni, it really depends on the nature of the easement. If it is a conservation easement, then your husband wouldn’t be eligible for any of the tax benefits that come with the easement if he sells before it is executed.
Hi Erika,
My family inherited 18 vacant acres on the San Pedro River in Cochise County Arizona.
We own it free and clear but are wondering about placing a conservation easement on it but retain the right to build one house and drill one well.
If we do put a conservation easement on the property will it reduce our property taxes which are only about $600 per year?
Hello Joy, yes a conservation easement should reduce your property taxes, but I would speak with both a local land trust and the county assessor to confirm.
Can you put a campground with RV lots and tiny movable homes on a conservation easement that doesn’t allow building?
Hello Shane, I would check with the land trust that is going to purchase the conservation easement. I would think this wouldn’t be allowed on the portion of the land that is actually covered by the easement.
Hi Erika,
The developer of our North Carolina subdivision is selling an adjoining property (that lies between our neighborhood and a National Forest and has benefits to our neighborhood in terms of water quality to our lake, natural space, and view-shed). The property is about 150 acres and is valued by the seller at around $2.5M. Some neighbors are organizing a drive to purchase the property with the intent of placing it into conservation (the seller seems unwilling to sell a conservation easement). The neighborhood has about 800 homes and has pledges in the $1M range so far. There is possibility of some matching purchase funds from a local land trust. Are you aware of any creative approaches to structuring this in order to, e.g. split out the tax benefits of the eventual easement to contributors supporting the purchase (e.g. in this case would an intermediate LLC make sense to form for this purpose?) … or any other means to help facilitate getting this property into conservation?
Are you aware of NC-based legal firms with experience in this area?
Thanks!
Bruce
Hello Bruce, I would speak with an accountant and real estate attorney, but my initial thought would be to create a partnership or corporation and deed the property to that entity. In this way, any profits generated by the company can be distributed to multiple partners/shareholders as outlined in the organization’s operating agreement. You could also consider using a nonprofit. Best of luck!
Erika,
I appreciate the information.
My 2 brothers and I own a 600 acre farm in VA in an LLC. We are looking at Conservation Easements as an option.
My question is, if one brother is retired and has a relatively low income and the other 2 are working and could use the tax credits, can the credits be split so 2 of us can apply the credits to our taxes and the retired brother sells his tax credits? I can’t find information on this.
Thank you!
Hello Thomas, I’m not sure if the tax deduction can be sold as I haven’t found any information on this (although some states, like Colorado, allow you to sell state conservation tax credits). You may want to speak with a lawyer, accountant or real estate professional who has experience with conservation easements.
Thomas,
You might also look at or consult with the folks at vcce.net
Best,
Bruce
I completed a conservation easement as a farmer in 2021, so qualified for the 100% deduction and have 15 years to use it. The total value of the easement was determined to be $1.5M. My question is, do I have to offset 100% of my income each year until it is used up? or can I choose to use only $100,000 per year for 15 years?
That’s a good question, Richard. Unfortunately, I’m not an accountant so I’m not qualified to answer this question, but I would recommend speaking with a local professional in your area. I’m sorry I couldn’t be of more help!
Richard,
You might look at IRC 170(b)(1)(E) … my read is that you don’t need to take the full 100% each year… but I’m not a tax attorney!
Also note that there is a tax court ruling that income from the sale of property is not qualified farming, so be careful of disposing of the land at a gain during the tax credit period, lest that de-qualify you.
Thanks for donating a conservation easement!
Best,
Bruce
Thank you for this, Bruce.
Hi Erika,
I am contemplating buying a property in which the mineral rights would not convey. They likelihood that this property has commercially viable minerals is negligible and the property is in the Adirondack Park. Would the lack of mineral rights make it challenging to put a conservation easement on the property?
Thanks,
Matt
Hello Matt, I wouldn’t think so, but I would recommend speaking with a few land trusts in the area to see if they would have a problem purchasing a conservation easement without mineral rights.
Hi Erika,
I bought a property with a conservation easement. The easement was started by the previous owner more than 15 years ago. Am I also eligible to use the tax credit for 15 years?
Thank you!
Hello Doris, I don’t believe so, but you can always discuss this with your accountant.
Many thanks for great information.