You are a landowner with a parcel of land that you do not want to see developed, what do you do to protect it? You might protect the land by putting restrictions in the deed when the property is sold. However, what if you don’t want to sell the property, but would like to protect the land and possibly gain a tax advantage? Establishing a Conservation Easement over the property could be the answer.
A Conservation Easement is a statutory creation by which a landowner creates an easement interest, or restriction on the land, to preserve the property’s natural beauty, agricultural forestry, recreational use or maintaining air and water quality (See 33 M.R.S.A. §476-§479-C). The piece of property does not have to be a large tract of land. It can be any size parcel, especially if it is protecting a unique natural beauty. A Conservation Easement may also be established to protect a historical, architectural or archeological setting.
A Conservation Easement requires that a Holder be appointed to monitor the land for compliance with the Easement terms. The Holder may be a governmental body, such as a municipality or the state, a nonprofit corporation such as a land trust or a charitable trust. The Holder must affirmatively accept the responsibility of monitoring the land under terms of the easement, and must be given access to the land to make certain the obligations set out in the Conservation Easement are honored. The creator/ landowner of the Conservation Easement may also determine in the creation documents if the public will have access to the property for recreational use, or whether the preserved area is a sensitive habitat which must be preserved and left undisturbed.
The decision to create a Conservation Easement should not be made without thoroughly understanding the implications of the easement. A Conservation Easement is for an unlimited period of time. It is perpetual in duration. A Conservation Easement may only be extinguished if the easement itself puts a limit on its duration, or if a Court determines that the easement is no longer in the public interest and approves a removal of the easement restrictions.
Cynthia Mehnert acts as legal Counsel to several local land trusts.
