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Understanding Conservation Easements

Conservation easements are an important land conservation tool allowing landowners to permanently protect land from industrial, commercial, or residential development that would destroy the property’s natural resources and their benefits. Landowners exercise the right to be good stewards knowing that their legacy will forever protect the land they love.

What is a conservation easement?

A conservation easement is a recorded legal agreement between a landowner and a land trust or government agency that permanently protects specific conservation values by limiting future development of the land. A conservation easement is voluntary and must comply with the local comprehensive plan. A property with a conservation easement is said to be an “eased property” or “under easement”. The landowner is the “donor” of the easement and the land trust, government agency, or other qualified entity is the “holder” of the easement. The Code of Virginia legally defines a conservation easement under Section § 10.1-1009.

Does the landowner still own his or her land?

An easement is a right or use of someone else’s land by a third party. The landowner thus keeps ownership title and controls the property and can freely sell it or pass it on to heirs. The landowner also retains certain rights to use the property such as continue farming or harvesting timber. The easement conveys with the property and protects it “in perpetuity.”

Does the public have access to properties under easement?

An easement does not require landowners to provide public access to their privately owned land. Conservation easements on land owned by a city or county usually provide for public access. An easement has other significant public benefits such as improving water quality, protecting cultural and historic sites, sustaining working farms and forests for future production, and preserving open-space lands that enhance our quality of life.

What do conservation easements allow or prohibit?

Each easement is unique. Together the landowner and the land trust (or agency) decide the easement’s terms. Typically, easements allow for continued farming, forestry, hunting, and fishing. The primary provision of a conservation easement is a limit on subdivision of the property and impervious surface (i.e., buildings and pavement), while limited building rights are retained.

How much land does an easement require?

Easements come in all sizes from as little as a half-acre to hundreds of acres or more. A land trust or agency’s focus and service area will guide its policies which, along with a property’s conservation values and the local comprehensive plan, will determine if it’s right for an easement.

What is the role of the easement holder?

After the Deed of Easement is recorded, the land trust or agency has stewardship responsibility: an annual site visit to ensure compliance with the easement and, if necessary, legal defense of an easement if a future owner violates its terms.

Are there tax benefits to donating an easement?

There can be federal and state income tax and estate planning benefits. In order to be tax-deductible, the easement: a) must be given in perpetuity; b) must be given to a qualified governmental or non-profit organization; c) must have an appraisal; and d) must be donated exclusively for the purpose of conserving significant natural, scenic, historic, scientific, recreational, or open space value.