Questions and Answers for Landowners

What is a Conservation Easement?

A conservation easement is a legal agreement between a landowner (the grantor) and a conservation organization or public agency (the grantee or holder). The agreement separates the rights to exercise more intensive uses -- such as construction, subdivision, and mining -- from other rights of ownership. These “development rights” are then transferred to the grantee through the conservation easement deed. The grantee agrees to hold, but not use, the development rights and to ensure that they are not used by anyone else; effectively, the development rights are extinguished. Conservation easements are granted in perpetuity and apply to the land regardless of who may own it in the future.

What land qualifies for consideration by NEFF for a Conservation Easement?

NEFF is interested in protecting sites with productive, actively managed forestland and other environmental resources. Priority is given to those areas where state and local initiatives are focused on protecting forested land. Such an area could be part of a county- or town-wide conservation project, a productive river valley, a local watershed, or a unique forest region. NEFF often works in partnership with state or local conservation organizations. In cases where NEFF cannot assist individual landowners, NEFF strives to help landowners make connections with other conservation organizations.

How does the conservation easement affect my property rights?

Landowners still hold title to their property and enjoy all the rights of ownership, such as the right to sell the property, lease the land, leave it to their heirs, control public access, the right to privacy, and so forth. The easement is perpetual and runs with the land and is binding on future owners. Under the terms of a conservation easement, the property cannot be used in a manner that significantly impairs the actual or potential use of the property as forestland or as open space land (or significantly impairs other conservation values identified in the easement). NEFF encourages good land stewardship and the easement provides for a “Best Management Practices” standard and general operating guidelines for forest management. NEFF does not dictate specific forest management prescriptions to the landowner.

On what land or portions of my land will a conservation easement be placed?

NEFF prefers to protect the entire woodlot or farm, as the case may be. If the property includes a residence(s), farm buildings, and other structures, NEFF prefers to exclude those areas from the easement, so that the landowner is free to exercise the rights to repair, improve, or replace existing structures on the property outside of the terms of the easement. In some circumstances, it may make sense for the landowner to exclude some portion of the property for future house lots for family members or as a financial contingency. The location of an excluded area is determined jointly by the landowner and NEFF, and should not detract from the overall conservation objectives associated with protecting the property. Sometimes a boundary survey is required to create a new property description for the excluded area(s).

How does a conservation easement affect the local property tax paid on the property?

Different states have different rules on the assessment of property encumbered by a conservation easement, but as a general rule the assessed value of easement-encumbered land will be based on its forest and/or agricultural value. If the property is enrolled in a forest current use taxation program, this program is not affected by the easement and the property taxes are likely to stay the same. If the property is not enrolled in such a program, then the property tax could be significantly lowered once the easement is placed on the property. The assessed value or buildings and improvements are not affected by the easement.

Does a conservation easement affect state or local by-laws or zoning regulations?

No. State and local land use regulations still will apply to the property. Any zoning regulations, building codes, subdivision rules, setback requirements, and health and safety regulations still apply to property under a conservation easement.

Who obtains the appraisal to determine the value of the conservation easement for tax purposes and how is the value determined?

A qualified appraisal is required to claim a tax deduction for a donated easement. The landowner is responsible for securing and paying the cost of the appraisal, but NEFF is willing to assist the landowner in the process of identifying and selecting an appraiser. The value of the conservation easement is the difference between the highest market value of the property before imposition of the easement and the market value of the property after the easement is in place. This is called the “before and after” approach to valuation. The “after” value typically reflects the forest, agricultural, and/or recreational value of the property.

Do I need a lawyer if I want to place a conservation easement on my property?

Yes. NEFF advises landowners to get qualified legal counsel to assist them in the decision-making process and to review legal documents. Placing a conservation easement on your property can have significant land use, income tax, and estate planning consequences and such a decision should be made with the advice of competent legal counsel.

Do I need a title report for my property?

Yes. An updated title report is a prerequisite to placing an easement on the property, and it is important to get a title report early in the process in order to avoid complications and delays later. This is an expense that is borne by the landowner.

Does a conservation easement on my property affect my borrowing power?

Not necessarily. The property still may have significant value when encumbered by a conservation easement. The easement itself does not restrict use of the property as collateral for borrowing.

Is a mortgage on my property affected by a conservation easement?

Yes. Any mortgage, deed of trust, or other monetary lien on the property must be discharged prior to the easement or subordinated to the easement. In the case of subordination, it is advisable to talk to your lender well in advance of placing an easement on the property to determine what, if any, requirements the lender may have. NEFF can help landowners in these discussions with their lenders.

What is a Conservation Easement Stewardship Endowment and how is the amount determined?

NEFF encourages a Stewardship Endowment for each conservation easement it acquires. A conservation easement is a perpetual obligation and responsibility for NEFF, and it is important that funds be available to ensure that NEFF has the means to fulfill the landowner’s goal of protecting the property. The endowment is a fund held in a restricted-purpose account at NEFF and is used to pay for the annual cost of monitoring the conservation easement. The Stewardship Endowment also serves as a reserve in case extraordinary legal or other expenses are required to defend and enforce the easement. Stewardship Endowments at NEFF typically range from $4,000 to $8,000. Complex easements may require additional funds. NEFF is flexible as to the manner in which Stewardship Endowments are contributed. They can be paid in installments, through a bequest, through a modest assessment if the land is sold in the future, or by donating the timber rights, or a portion of them, to NEFF. If the landowner donates timber rights, NEFF provides forest management services to the landowner.

What is a Property Baseline Report?

At the time the easement is placed on the property, a baseline documentation report is prepared with maps, photos, and other materials that document the condition of the property. The report then serves as a baseline to determine changes that occur over time.

What is the monitoring process and how do I ensure my privacy is maintained?

NEFF strives to visit each of its easement-protected properties once every one or two years. These visits are intended to be friendly and informative, and can provide an opportunity to exchange information or to answer questions the landowner may have about the easement or the property. Advance notice for each visit is given and the landowner is strongly encouraged to participate. The visits usually involve driving around or walking around the property, taking photographs, and filling out a questionnaire. In the case of large sites or clusters of protected properties, low-level aerial monitoring is conducted, again with advance notice to the landowner. NEFF maintains communication with the landowner by mail, phone, and through its newsletter.

I have decided I want to proceed further with a conservation easement for my property. What are the next steps?

NEFF’s Land Conservation Program is located at 32 Foster Street, P.O. Box 1346, Littleton, MA 01460. Please give us a call at 978-952-6856 and ask to speak with the director of land protection. We will set up an appointment to meet you at your property and to discuss the process for moving forward.

	New England Forestry Foundation PO Box 1346 Littleton, MA 01460 (978) 952-6856 info@newenglandforestry.org
	Home | About | Conserve | Forestry | Explore | Events | Support
© Copyright 2008. All Rights Reserved. NEFF