If you're interested in land protection, take a look at these Frequently Asked Questions to see if donating an easement is right for you.
Q. What is an easement?
A. The dictionary defines an easement as an interest or right which one person has in the land of another. Ownership of land can be thought of as a bundle of rights to that land. The owner can transfer away some or all of those rights. The owner may transfer his or her interest in rights such as water, development or timber and still own the land to which those rights are attached.
Q. What is a conservation easement?
A. A conservation easement is a legal agreement between a property owner, the donor and a qualified conservation organization or agency, or the holder, in which the owner voluntarily agrees to restrict the type and amount of development that may take place on his or her property. A conservation easement is a way to preserve property that has a conservation or historic value while keeping the property in its natural and undeveloped state and still maintaining ownership of the property. The owner also keeps the right to use property for economic gain or recreation and the right to sell or deed the property to another. A donation of a conservation easement also may reduce estate, income and property taxes.
Q. What kind of properties qualify for a conservation easement?
A. As a general rule, a conservation easement must have a valid conservation purpose. A guide is provided by the Internal Revenue Code Section 170(h)(4)(A), which defines valid conservation purposes as:
The preservation of land areas for outdoor recreation by, or the education of, the general public; 2.
The protection of a relatively natural habitat of fish, wildlife or plants, or similar ecosystem; 3.
The preservation of open space including farmland and forestland where such preservation is: A.) For the scenic enjoyment of the general public or B.) Pursuant to a clearly delineated federal, state or local government conservation policy, and will yield a significant public benefit or C.) The preservation of a historically important land area or certified historic structure.
Q. How long does a conservation easement last?
A. An easement may be granted for a term of years or in perpetuity. However, for a landowner to take full advantage of the possible benefits of a donated easement, it must be given in perpetuity.
Q. What is contained in the easement document?
A. The conservation easement document contains a series of restrictions relating to use of the land. The owner transfers, by deed of conservation easement to DU, certain rights which will protect the property in the future. The owner initially gives up all development and rights to the property, but then reserves the rights they specifically desire and need to farm, ranch, hunt, etc. The purpose of the document under the law is to preserve the land in an undeveloped state, so the owner initially gives up all rights. But the land also needs to be used for other purposes to benefit the owner, for example as a farm. The owner then reserves the right to undertake agriculture or other necessary activities on the land. The document is recorded on the land records of the town or county where the property is located. This way, the easement is attached to the land by the records and "runs with the land." In other words, all subsequent owners of the property, or anyone who obtains an interest in the property, purchases it subject to the terms of the easement.
Q. Can an easement be changed?
A. The conservation easement is a document that dictates preservation in perpetuity. Changes seldom occur in practice. The only time a significant change is allowed is with the approval of a court of law upon the showing that the original purpose for the easement is no longer valid. An easement occasionally may be amended for certain reasons. The addition of property to the easement, clarification of terms or boundaries or additional restrictions could be grounds for an amendment. As a general rule, an easement only will be amended if the amendment will strengthen the document and increase protection of the property.
Q. Who can hold a conservation easement?
A. An easement holder should be chosen with great care, and it is recommended that a national organization be selected. A donor must be sure that the holder has the expertise, time and financial commitment to protect the property indefinitely. In order to take advantage of the tax benefits of the donation, one condition is that the owner must grant the easement to a public agency or a conservation organization that qualifies as a public charity under Internal Revenue Code Section 501 (c)(3).
Q. How does Ducks Unlimited fit in?
A. The majority of America's remaining wetlands are found on private lands, working with landowners is an integral part of DU's conservation program. DU believes that most lands can benefit wildlife and produce an economical return to its owner. DU can help provide technical advice and help the landowner adopt wildlife friendly management practices. DU is a national organization with significant resources. An endowment fund ensures DU will be able to monitor and enforce restrictions on the properties in perpetuity.
Q. What responsibilities does DU have as the holder of an easement?
A. Monitoring and enforcement of the terms of the easement are a cooperative effort between the owner and the holder. The holder is responsible for enforcement of the restrictions in the document. The holder must monitor the property on a regular basis and maintain a written record. Each year a regional biologist or other qualified representative from DU will visit the property and prepare a written report based upon the condition of the property. Usually the owner or his manager chooses to accompany the biologist. Both parties need to be assured that the property continues to be maintained in compliance with the terms of the easement. Should the monitoring uncover a violation, then DU has the duty and legal right to require the owner or violator to correct the problem. The holder may take legal action. Communication between the owner and the holder helps to eliminate the need for drastic actions, and most problems are solved by the parties themselves.
Q. Does DU accept all easements offered?
A. No. DU concentrates its conservation efforts in certain focus areas, which are regions of importance to waterfowl. These areas include the most important nesting, migration and wintering areas for migratory birds throughout North America. If the property does not fit with DU's mission, DU will help the landowner find a more appropriate organization to accept the easement.
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