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Know the Law: Conservation Easements: A good idea?

Written by: Alexandra T. Breed

Published in the Union Leader

Q.  My parents own a cabin on 75 acres with 500 ft. frontage on a lake in Hopkinton, NH. The land is mostly forested, with 10 acres of fields. They want to preserve the land for future generations but are concerned about the cost and potential restrictions of a conservation easement. Can you explain its benefits?

A Conservation Easement is a permanent deed restriction placed on property given or sold to a nonprofit land trust or government agency, which ensures that it will remain undeveloped forever.  Easements allow families to retain ownership and use of the land, while permanently surrendering the right to develop it for commercial or residential use.

You still own the land, subject to the restriction against further development. You can use of the land just as always, including active forestry and agriculture, sell it or pass it on to your heirs. You remain liable for the property taxes.

There is no legally required form for a conservation easement, although most follow a similar format. The conservation purposes are recited, the basic restrictions against development are listed, and finally the “reserved rights” retained by the landowner are stated.  The “reserved rights” might include the right to build a future dwelling, trim trees to maintain a view, prohibit access by snowmobiles or ATV’s, etc.  Public access to is not required under most circumstances.

It can be expensive to grant a conservation easement. Appraisal, survey and attorneys’ fees may be significant.  However, some or all of those expenses may be deductible.

If your family is not in a position to give away the easement, it could donate part of the appraised value and be paid for the rest of the value, in a “bargain sale” transaction.

The donation of a conservation easement to a qualified entity may be eligible for a federal income tax deduction as a charitable gift.  The amount of the deduction will be determined by a qualified appraisal, which is based on the difference between the value of the land before the easement, and the reduced value after the easement. Potential estate taxes can also be reduced or eliminated, because the value of the asset has diminished. However, if the property is already enrolled in the Current Use program, the local property taxes will probably not be affected by placing an easement on the property.

Conservation Easements are not for everyone. The process can be time consuming and expensive. However, it allows a family to preserve their property for future generations, while continuing to use and enjoy the land as they have always done.

Alexandra can be reached at [email protected].

Know the Law is a bi-weekly column sponsored by The McLane Law Firm.
We invite your questions of business law.  Questions and ideas for future columns should be addressed to:  Know the Law, The McLane Law Firm, P.O. Box 888, Manchester, NH 03101 or emailed to [email protected].  Know the Law provides general legal information, not legal advice.  We recommend that you consult a lawyer for guidance specific to your particular situation.

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