I have nothing but respect and affection for state crews who maintain public roads, summer and winter. I don’t feel the same toward certain road-department policies. Here are two examples.

Some years ago, I owned 400 acres on both sides of a state-maintained road in another state. The one-and-a-half-lane, paved road was at the top of a mountain and faced north. It was steep, narrow and curvy. It had been bench cut into the north-facing bank, which shielded it from winter sun. As a result, snow piled up and up, and melted slowly. I’ve seen snow there in May.

A week or so after I bought it, the county superintendent of the state road department appeared unannounced in my frontyard and offered me a roll of fence wire. I had no idea what he was talking about. It turned out that his crews routinely pushed the accumulated snow over the bank and into what was now “my fence.” As a result, the fence was damaged beyond repair. They had no other place to put the snow. The roll of wire might have been worth $100. The damaged fence line was about 800 feet, maybe a $1,500 job to take down and build anew.

I wanted to build a new fence so that I could pasture cattle behind it. I needed to know the width of the state’s easement, and I wanted to make some arrangement to let the road department remove snow without damaging a new fence.

The road department would not tell me the width of its easement. Nothing was recorded.

I was willing to sell the state a strip of land between my new fence and their easement that would give them space to pile snow. I was willing to have them condemn a strip by eminent domain and accept fair market value, the amount of which was, maybe, $1500. I was willing to install gates in the new fence so that they could dump on my land without pushing over the new fence. I was willing for them to repair damages at their expense each spring. I was willing to consider any solution that would work for both parties.

Having acknowledged state responsibility for damaging the old fence each winter, the county superintendent refused to do anything different. He said to me, “We can do whatever we want with all of your land.” He said to me that I should “give the state the strip of land.”

I was outraged at this taking—and this attitude.

I went to court. I wanted the state to stop damaging my property. I wanted to build a fence on my property. I wanted to know the width of the easement claimed by the state.

The highway department did not produce a single document showing a right-of-way easement, road design, survey or anything else. Nothing. They refused to tell the judge the width of their claimed easement.

First, they claimed they owned an easement of whatever dimension they wanted by adverse prescription or adverse possession. They backed off this argument when I asked whether stealing was official state policy. Then they claimed that the previous owner more than 60 years ago had given them permission to “use whatever land they needed for the new road.” Fine, I said, permission is a license, which ends when the property is sold or the death of the person who granted it in the first place. Permission does not run with the land. Permission means that they cannot obtain the easement by adverse prescription or possession.
Their final argument was that the state had a right to do whatever it wanted in the public interest, including taking my entire 400 acres, and had no responsibility to compensate a private landowner for any damage they caused in keeping roadways open for the public. I could not stop the state from damaging my property year after year, nor could I get them to compensate me for the damage.

The judge said in a preliminary hearing that he would not allow me to introduce into evidence the fact that the superintendent had offered me a roll of wire or any of the statements that he had made to me. He refused to acknowledge that the settled law of permission — the state’s claim to the easement in the absence of any other — ended with the sale of the property or the death of the party granting permission. It was clear that I would lose in this judge’s court.

To have a chance at winning, I would have had to appeal to the state supreme court. I figured that the supreme court would see the interests of its state highway department as superior to those of a private out-of-state landowner, just as the local judge saw it. It would have cost me a lot of money to kick the case upstairs on principle for the purpose of losing the principle. So I dropped the suit, and eventually sold the land to a couple who didn’t care about the fence or the principle.

My wife, herself a county attorney, told me at the beginning to not start with them. “You won’t win,” she said. “The facts and the law won’t matter.” A local lawyer who talked to the judge told me that they couldn’t let me win this case owing to the precedent it would set. The precedent being—the state should pay for takings and damage. Imagine!

As you can see, I’m still enraged over this.

A couple of weeks ago, I noticed that the state road folks were spraying their easement to control vegetation and had consistently exceeded their width—by 20 feet in some cases. I don’t object to spraying on their easement, nor do I object to controlling vegetation on their easement. I do object to having them kill trees that are not on their easement, that is, trees that are mine and have value.

Doing something with a state road department on this kind of matter is an expensive, time-eating, frustrating and quixotic exercise. I am less angry about the second incident than the first, because I didn’t invest in fighting it.

I am a bad citizen, but a more pragmatic one.

Any property with state road frontage involves state maintenance. Buyers are vulnerable to surprises, and owners are vulnerable to arbitrary policies that cost too much for a landowner to correct.

Over the years, I’ve become less enthusiastic about conservation easements as they apply to timberland.

Among the mixed bag of reasons for my unease are:

1. Deliberate inflation of timber value to inflate the size of the easement value to inflate the size of the tax benefits available to the landowner;

2. Questionable assignments of environmental value to certain timberland tracts, which is the first hurdle in qualifying land for conservation-easement status;

3. Overly strict restrictions on cutting timber that have little, if anything, to do with protecting the environmental values of the tract;

4. A bias toward applying wilderness (“forever wild”; no-use) standards to non-wilderness lands in a way that doesn’t benefit the environmental values that should be protected;

5. Easement donors who don’t fully understand the long-term financial implications for spouses and heirs of severing a valuable, appreciating right in a property, particularly when it’s one of their principal financial assets;

6. Revenue loss for local governments that reduce assessed property value to reflect the donation of the easement; and

7. Long-term reduction in the amount of land capable of producing wood products, broadly defined, which may or may not affect timber supply and prices in the future.

Still, I endorse the use of conservation easements for certain types of timberland and other lands. I work with clients who use them as part of their acquisition strategies. I’m not opposed to leaving private lands completely free of human intervention, though I think that usually carries the notion of protection too far and winds up putting important environmental values at risk.

While it doesn’t address some of the issues I’ve listed above, a Working Forest Conservation Easement (WFCE) does address several important ones. A WFCE envisions timberland to be managed for timber production over a long period. This can involve annual timber-sale income in the case of a very large tract or income spaced, say, every 15 or 25 years, for smaller tracts of mixed-age, mixed-species woods. The emphasis is on long-term returns from sustainable management rather than a short-term emphasis of maximized revenue. Use restrictions that would impede managing the woodlands as a working forest are not imposed.

The rights that the WFCE limits relate to residential and commercial development. The value of these rights depends on the location of the property and other factors, but it could amount to as much as 50 percent of current fair market value. The value of the easement would typically include the estimated value of the development rights (residential, commercial, mineral) foregone along with the foregone value of merchantable timber not cut in the short run.

One version of a WFCE was developed to protect and work with about 2,200 acres of California redwoods in the Van Eck Forest. The concept was pioneered by the Pacific Forest Trust (PFT) whose goal is to preserve productive private forests for all their public benefits—the delivery of wood, water, wildlife and a well-balanced climate. PFT incorporated carbon storage in its management plan for both climatic and financial reasons. The forest generates income from the sale of both timber and carbon credits. (Laurie Wayburn, “THE VAN ECK FOREST: Carbon Markets and the New Economic Paradigm for Forest Sustainability,” in James N. Levitt, ed., Conservation Capital in the Americas: Exemplary Conservation Finance Initiatives, Lincoln Institute of Land Policy/Island Press, 2010)

A WFCE generates income for the landowner; maintains significant, appreciating value for heirs; incorporates environmental values into its timber-management plan; continues timber production from a renewable resource in a sustainable manner; and offers the option of generating income from the timberland through carbon credits and hunting leases, if desired.

Making arrangements for the sale of the landowner’s timber-stored carbon is a critical part of the PFT’s approach. It’s cumbersome and costly for small landowners to work through the Chicago Climate Exchange, but it’s possible…and it may become easier in the future.

I emailed a request for more information.

The broker faxed me materials related to the property’s features, boundaries, topography, deed and a…conservation easement.

I read through the 12-page easement.

The seller’s easement had stripped out almost all of the land’s intrinsic (economic)  value. The woods could not be “commercially harvested” under any circumstances. This included salvage sales in the event of a hurricane or gypsy-moth mortality; firewood sales from broken trees or single blow downs; sale of timber that could arise from a power-line easement being forced on the landowner; or sale of timber from improving wildlife forage opportunities. Trees could not be cut to control fire on the property. It appeared to me that the easement prohibited the owner from paying a caretaker/watchman in downed firewood, since that arrangement could be converted into dollars and, hence, amount to a commercial sale.

The easement did not prohibit having a chainsaw on the property, but it essentially eliminated its use for anything other than gathering personal firewood. It was questionable whether an owner could use a chainsaw to remove downed trees over the property’s interior roads, even though removal would facilitate low-impact recreation like hiking and bird-watching, not to mention making the property safer in terms of fire suppression and emergency rescue.

The easement allowed one division of the property. It also allowed one small house to be erected on one — but not both — of the parcels. It did not say whether a utility easement could be cut through the woods for an overhead line. It did not say whether trees taken down to develop a new road or power-line easement could be sold. It did not say whether a new road or power line could be installed at all. The easement neither authorized a sale of road/utility easement timber nor prohibited it. In that event, the conservation organization that held this easement in perpetuity would make the call in the spirit and text of the easement as a whole. I’d interpret that as a future NO.

All commercial uses of the property were prohibited, including agriculture of any kind. The owner could not sell a mushroom or ginseng root. He could not plant an organic herb garden on 100 square feet and sell the herbs He could not lease the stream for fishing or the trails for horseback riding. Hunting, of course, was also prohibited.

The seller undoubtedly believed that he had conserved the property forever as he saw it in 2005. Easements can’t stop the inevitable changes in land that work sometimes for the better, but sometimes for the worse. An easement doesn’t lock land in a time capsule.

The seller had burdened the land with over-the-top use prohibitions and taken the maximum amount of easement tax benefit against his then-current income. Maybe it made sense to him when he did it, but I expect he might have second and third thoughts about it today.

I heard that he had tried marketing the property at about $1,750/a, then dropped the price in painful steps down to $875. I might have been a buyer at $100/a, but I would have stretched my judgment to get even there.

This seller had, in my opinion, taken a preservation-type conservation easement beyond where it needed to be to preserve the environmental health and integrity of his property. The seller bought into the idea that if some restrictions are good, a ton of them are better. Proof of this proposition is debatable.

A less restrictive easement would have retained considerably more sale value in the dirt.

If you’re planning to sell land, I advise that you be very careful in designing a conservation easement. Balancing your short-term tax benefits, environmental values and sale expectations is the goal. Imbalance brings its own penalties.

The seller of a conservation easement is a landowner who desired to restrict development or land use through this option, but still holds on to ownership of the land.

The buyer or recipient of a conservation easement is typically a government conservation program or a private conservation organization. While the landowner seller has specific benefits that make a conservation easement desirable, the buyer or recipient too reaps benefits from this type of transaction.

Five Benefits to Buyers or Recipients of Conservation Easements
•    The buyer or recipient can protect more land resources with fewer dollars by buying rights to the land and not the land itself.
•    The buyer or recipient obtains land by way of the conservation easement that might otherwise be unavailable (for example, the landowner isn’t selling the land outright, but is interested in a conservation easement).
•    The land continues to provide economic activity.
•    The land stays on the tax roll.

Conservation easements benefit all involved. The landowner controls the land, the conservation buyer or recipient is assured that the land will not be developed, and often, the public is the greatest benefactor through preserved recreation areas and enjoyment of natural lands.

For more information on conservation easements, land, commercial, industrial properties, and land and resource management, please visit www.saundersrealestate.com or call Dean Saunders at 1-877-518-LAND.

1. An easement by necessity prevents certain properties from being landlocked, that is, cut off from a public road. If I were to sell 50 acres at the back of my 100-acre tract and provided no access easement to the buyer, he could get a court to grant him an access easement for a road over me by necessity so that he could reach his 50 acres. The buyer in this example should be aware that the court may not award him the location for a right of way that he wants. Easement by necessity may also be used to gain access to a water source in certain circumstances.

To gain an easement by necessity, the landlocked party must prove that his parcel was once part of the parcel that he wants to cross. In Virginia, at least, property can be landlocked if this cannot be proved in court.

2. An easement by implication is the idea that the owner of a property has a right to a use on the property of another that was “reasonably necessary” for the use of the property when it was conveyed. To establish this type of easement over another’s property, the use should have been continuous and obvious. This can be a slippery idea, and whether or not a court agrees depends on the facts in each case. An easement by implication might be granted to an owner who has used a river ford on another’s land for many years as have his predecessors in title.

3. An easement by prescription, or prescriptive use, is a hostile take-over of a use. It is an implied easement that is established when the party seeking an easement over the property of another proves that he and/or previous owners of his property have used the other’s property continuously for the minimum number of years specified under state law, openly and without the owner’s permission. This claim to use the property of another must be adverse, that is, with his knowledge and acquiescence of a use that runs against his own rights in his property.

The party claiming a prescriptive use need not have paid property taxes on the land on which the use is asserted. Some states may require that a prescriptive use be exclusive, that is, limited to one party; others permit more than one party to claim and benefit from a hostile easement.

If the party claiming prescriptive use was given permission to use the property, prescriptive easement will not be awarded. And a prescriptive easement will not be awarded if the servient tenement — which would bear the easement — has a mortgage.

The party claiming prescriptive use must meet every standard that state law has established. Prescriptive use amounts to a private taking of a right in another’s property, but not a taking of ownership.

Access roads are often the subject of prescriptive-easement disputes. Another example occurs when one landowner fences in land that he doesn’t own. This is called an encroachment. In certain circumstances, the encroachment may be awarded as a prescriptive easement to the party who did the encroaching.

In California, a landowner who has enjoyed a scenic view over another’s property can establish his right to that view by prescription. In most states, scenic views cannot be established by prescription.

If you, a buyer, are told by a seller or his real-estate agent that he has a prescriptive easement to access his property, be aware that the seller may have no legal access at all.

A prescriptive easement comes into existence only upon a court’s ruling. The opinion of the seller and his agent amount to an opinion, nothing more.

4. Public authority (or a private organization with a statutory right) can acquire the use of private land against the owner’s wishes through an easement by condemnation. A township can build a new road over private land by acquiring an easement through eminent domain. Electric utilities can do the same. Owners are supposed to be given fair compensation for their loss.

A conservation easement (CEs) is either donated or sold to a public agency or land-trust organization. Its purpose is to protect or conserve some statutorily recognized environmental value, such as habitat for endangered species, open space, wetlands or aesthetics. Most CEs are being used to limit or prohibit development on undeveloped land and farms.

A CE donor gets a wonderful package of local, state, federal and estate tax benefits for conveying a limitation on some right in his property in perpetuity. A CE’s financial value is determined by appraisal.

A property burdened by a CE is worth less — sometimes far less — than it’s worth free of the restriction. A CE, for example, might prohibit residential development on a 200-acre farm surrounded by suburban housing or prohibit timber cutting on land with valuable timber.

A seller should give a buyer notice that the seller’s property carries an easement restricting its use. Recordation amounts to notice. With an unrecorded easement, a buyer who has no notice and could not have observed the use may be able to free the property of its easement, depending on what kind it is.

Easements can be ended. The holder of an easement can record a release, which gives up his right voluntarily. The dominant and servient tenements can negotiate a termination. An easement can end when the purpose for which it was established ends or the term of the easement expires.

An easement can also be abandoned by its holder or terminated by merger when the dominant tenement buys the servient tenement, or vice versa.

If the dominant tenement changes its usage of an easement beyond what was provided, the servient tenement may be able to have the easement voided altogether. If, for instance, A has an access easement to use a road over B and A decides to rezone his property from agriculture to commercial to allow for a 24-hour ATV racecourse, B should be able to terminate the access easement for A’s new use.

Other kinds of easements that show up in the country include:

• recreational easements, whereby a state gives property-tax breaks to owners who agree to allow use of their property by the public for activities such as hiking, horseback riding, hunting, fishing and biking.
• solar easements, which prevent one landowner from blocking sunlight coming on to an adjacent landowner.
• utility easements for electric-power and telephone lines, and fuel pipelines. These also involve the holder’s right to maintain their lines.
• access to beaches or surface waters
• historic-preservation easement, which grants the right of preserving the interior and/or exterior of a historic building, usually in return for tax deductions. This easement prevents the owner of the property from changing the building’s appearance.

It’s the buyer’s obligation to understand the nature of any easement that exists in relation to land being purchased. The seller may be the single source of information on non-recorded easements. A title search will turn up all recorded easements, but not unrecorded ones.

It’s worth talking to a local real-estate lawyer about these matters before submitting a purchase offer.

Easements are a complicated and thorny area of the law. The facts of a specific case generally drive a court’s decision. If you find yourself with an ambiguous or contentious easement, hire the best local real-estate lawyer you can afford.

The non-owner who holds the easement can be another parcel of land, public agency, utility, individual, business entity or a non-profit organization like a land trust.

A positive or affirmative easement would allow me to use a stream on my neighbor’s property for watering my livestock at a certain spot. A negative or restrictive easement held by my neighbor would prevent me from erecting a line of wind turbines that would ruin his view.

Easements are legally binding agreements, but they may or may not be recorded.

A recorded easement will be found in the courthouse records, and it’s often incorporated into the deed.

Sellers should inform buyers of any non-recorded easement. A buyer should include language in his purchase contract that requires the seller to disclose the existence of non-recorded easements and other non-recorded documents.

Country property often involves an access easement for ingress and egress. Property A is located 1,000 feet from a state-maintained road. Property A is sold to you with an access easement to cross Property B, which lies between your boundary and the road.

Property A is the “dominant tenement” because it has the right to use the land of another; Property B is the “servient tenement,” because it is burdened with this use.

Sometimes these terms will be written as dominant and servient estates.

Access easements do not convey ownership. Property A doesn’t own the land under its access road over B. Property A can’t possess the road, just use it.

Property A would typically have the legal obligation to maintain its access road over B, though the two owners may decide to share the costs.

Five problems can arise with access easements.

The first comes up when the road on the ground doesn’t follow the location of the road in the deed. Property B, the servient tenement where the road runs, may insist that A use the specified location. A may or may not have established the right to use the road where it is, which is likely to have been jiggered around over the years to avoid wet spots and steep slopes. State law and a court would have to make this call.

The second problem arises when the road is too narrow for Property A’s needs.

A ten-foot-wide easement might have been fine for wagons, horses and even pickup trucks, but it is too narrow for big trucks used for logging, concrete and building supplies. Where a deed does not specific a width, a court would likely find the agreed-to width is that which was established when the easement came into existence. If that’s not possible to estimate, the court would establish what a “reasonable width” might have been or, as a last option, what a “reasonable width” is today.

The third problem occurs when Property A uses its access easement in a way that B objects to. This often involves big trucks, lots of traffic and noise. Again, a court would have to determine the definition of “reasonable use” by A over B’s property, but, generally speaking, courts would go along with these types of uses. Property A does not have a right to use B’s property in a way that damages it.

I ran into a situation some years ago where Property A had an access easement over about a dozen other properties, none of which wanted A to run logging trucks over the road through their lands. While A had a perfect right to do so, the threat of a protracted legal squabble with a dozen well-heeled Bs was enough to discourage a buyer.

I own two wooded properties where I am the servient tenement (B) for an access road that dominant tenements (As) have a right to use. I’ve had no problem, but I know other Bs who find constant annoyance in this arrangement. I also know some As who have to squabble with their Bs, who do things like erect locked gates and excavate water bars that prohibit use. When a B (servient tenement) blocks legal access to A, he is committing trespass upon A’s easement and can be sued.

A fourth problem that can come up with access is the use of a floating easement.

This document does not specify a fixed location for the road or limit the width of the right of way. The holder of a floater may be able to claim access anywhere and however he chooses.

The final problem arises when the dominant tenement (A) increases the burden of the access easement on the servient tenement (B) by dividing his property. State laws differ on this issue. Usually, the dominant tenement will be allowed to increase the burden some, say three or four lots instead of one, but not by, say, 20.

An easement — with both a dominant and servient party that runs with the land — is called an “easement appurtenant.” It exists between adjacent parcels of land owned by different parties. The easement appurtenant is held by the dominant tenement and conveys with that deed forever. In addition to an access easement, other possible easements appurtenant in the country are ones that allow for a non-owner to cross a bridge, use surface water or other resources, or tap into a spring.

An easement appurtenant is not a lease. An easement gives its owner the right to use the land of another, but not to occupy it or possess it as a lease does. A lease has a termination date while easements tend not to have termination dates.

An easement also differs from a license. When I give permission to A to use my property (B), it’s a license. I can end it any time. It does not run with the lands of either A or B. It is not perpetual. When either property is sold, the license ends. When either of the two parties who entered into the license dies, it ends. If someone is using your land under vague or disputed terms, you might start down the road to clarification by sending that party a letter granting them a license. It is then up to the other party to establish that they have an easement, not a license.

A personal covenant, which gives another party some right or denies some right in the land of another, is more of a contract than an easement when it doesn’t run with the land of either party. If I agree to let you pick apples from my trees, it’s a covenant, license or contract, not an easement or a lease.

An easement is not a reservation of profit in another’s land or its resources.

A profit is a right to take something off the land, like oil.

An easement in gross provides for an individual right to use another’s land. The right is held by a person or business entity, and does not attach to another parcel of land like an easement appurtenant. Utility and pipeline easements are easements in gross. They allow their holders to come onto the servient tenement to install and maintain their lines.

A landowner can agree to become a servient tenement by granting, donating or selling an easement to a dominant tenement. The easement granted, donated or sold allows the dominant tenement to use the servient tenement in some way, as in the case of an access easement.

With a negative or restrictive easement, the dominant tenement receives some property right in the servient tenement which the servient tenement can no longer use.

In a conservation easement, for example, the servient tenement may relinquish the right to develop residences on farmland to a land trust, which has the authority to prohibit the servient tenement from ever engaging in such development.

A grant is like a deed in that it will be described and conveyed. Most easements that are granted are written and recorded, but not all. Grants are agreed to by both the dominant and servient tenements.

What are the specific benefits to the landowner? Below is a list of eight of the general benefits for considering a conservation easement:
• The landowner maintains control and ownership of the property.
• Each conservation easement is individually structured to meet the needs of the landowner, along with the conservation criteria, and can be structured broadly or specifically.
• The landowner keeps the land and receives payment for the appreciated value caused by development pressure.
• The landowner assures the property is protected for future generations
• The landowner continues to receive income from his/her land.
• The property may be sold and the restriction travels with the property.
• Future generations are assisted in the transfer of the land by favorable estate tax treatment.
• Landowners may gain income tax advantages.

Most landowners are interested in tax advantages when considering a conservation easement. Landowners may receive income tax advantages that include gifting, tax deferred exchanges, and gains used against the basis value. Tax advantages can also assist in the transfer of property from generation to generation and can lower estate taxes for heirs by maintaining the agricultural classification of the land.

A generational transfer may benefit a landowner by lowering the value of the property for estate tax purposes. This happens because after the rights to develop it are sold, the highest and best use of the land is usually agricultural.

Gifting is a using the conservation easement as a donation to the government or to a qualified conservation organization. Gifting is treated as a charitable contribution and results in lower Federal income tax.

A Tax-deferred Exchange is an option allowed by the IRS for landowners who owe capital gains taxes because of the sale of property. This defers paying the tax by purchasing another piece of property instead of paying the tax. Known by several terms, a tax-deferred exchange is often referred to as a Like-kind Exchange or a 1031 Exchange.

The IRS allows a tax exchange for owners who have a capital gain because of the sale of a conservation easement. In my award-winning booklet, “We Create Solutions for Landowners: A Primer on Conservation Easements,” see case study #1 for an example of how this might work for you.

Gains Used Against Basis includes basis as the amount you paid for the property, plus the value of any capital improvements, less any depreciation claimed. If you sell a conservation easement, the IRS will allow you to reduce your basis by the amount of the conservation easement, which may result in you not paying any capital gains taxes. In my award-winning booklet, “We Create Solutions for Landowners: A Primer on Conservation Easements,” see case study #2 that uses this tax advantage.

To take advantage of a Federal income tax deduction, a conservation easement must be perpetual and given to a specific division of the government or a qualified conservation organization. Annually, the division or organization monitors the property to assure that the easement is not being violated.

For more information on conservation easements; land, commercial, and industrial properties; and land and resource management, please visit www.saundersrealestate.com or call Dean Saunders at 1-877-518-LAND.

What has been the experience of LandThink visitors with reductions (or lack thereof) in local property tax once a CE has been put in place?

CEs donate one or more rights in a property to a land trust or similar organization. This is done to conserve some environmental value–keeping land open or in agriculture, limiting or prohibiting development, protect habitat, etc. The donated right has a monetary value.

Are land owners with CEs getting their properties reduced in subsequent tax assessments to reflect the donation? Are there standard formulas? Are donors being treated fairly?

If your land is enrolled in agricultural land use or in a managed timberland program (both of which reduce property taxes), are CE lands getting an additional local property tax break?

What are your thoughts?

Conservation easements are powerful, effective tools available to landowners for the permanent conservation of private lands in the United States. The use of conservation easement options has successfully protected millions of acres of wildlife habitat and open space, keeping land in private hands and generating significant public benefits.

The primary purpose of a conservation easement is to give a landowner the right to protect his land from certain types of development or land use. This opportunity appeals to property owners who hold undeveloped land that is agricultural and/or has timberland, wildlife habitats, natural open space, and those with natural resources. Simply, a conservation easement is a restriction on the use of property similar to a deed restriction. It is recorded in public records and generally is in perpetuity. The government receives assurance that this valuable land will be protected from future development.

When you purchase land, you also purchase a bundle of rights. These rights include, among others, the right to develop, and the right to minerals and water. Collectively this bundle of rights is called “fee title.”

As a landowner, you also have the ability to sell some of these rights while maintaining ownership to the land. This is generally known as selling a “less-than-fee” interest. A conservation easement is a form of “less-than fee” interest and is a voluntary agreement that allows a landowner to limit the type or amount of development on their property while retaining private ownership of the land.

When you choose to give up some of these rights, by either donation or sale, you are compensated. The more rights you relinquish to the recipient, the more compensation you’ll receive, by either tax benefits or direct dollars, or both.

As a Florida native, born and raised in Central Florida, I have a strong heritage that appreciates the “old Florida” lands with their natural beauty and habitats. With progress and development of the past years comes the destruction of these lands in favor of buildings, roads, homes, and communities. Progress is needed to support our communities; however, today we find too few acres of “old Florida” and too few habitats for Florida’s unique wildlife.

My life’s work, first in the Florida legislature and now in real estate, has been closely tied to conserving Florida’s landscape through work in the legislative process and guidance to landowners for conserving their land. One opportunity we consider is a conservation easement. A conservation easement is recommended to my real estate clients when the property is right, meets qualifications, and the landowner desires a way to keep the property from major development.

As a member of the Florida Legislature from 1992 to 1996, I led the establishment of the Green Swamp Land Authority that resulted in the first Florida state agency ever created to purchase development rights from landowners. This work was instrumental in the passing of the law requiring Florida state agencies to purchase a specific number of conservation easements each year. Today, not only is the number of conservation easements being bought by the federal, state, and local governments growing, but also we see a demand from private conservation organizations.

Florida tourism and population boom have made land more valuable than ever. Some landowners would like to profit from the increased value, as well as preserve the beauty and function of their land. Others want their land to stay in the family, but worry that estate taxes will force their heirs to sell.

While many conservation easements are donated, others are also sold. If your land qualifies as a conservation easement, it is worth your time to research how this can benefit you and your family for generations to come.

For more information on conservation easements; land, commercial, and industrial properties; and land and resource management, please visit www.saundersrealestate.com or call Dean Saunders at 1-877-518-LAND.

Some are sold, but most are donated. They are usually sold or donated in perpetuity, though some have limited terms. Most easements are set up to preserve open space, restrict/eliminate development or keep farmland in agricultural use.

At the time of the donation, its value is calculated. The donor uses the value to receive, federal, state, local (property tax) and estate tax benefits. These are substantial.

The question I have is how should a buyer calculate the discounted value of a for-sale property burdened with a conservation easement?

Many sellers seem to think that a CE is a selling point and don’t like to discount their asking prices.

It’s often hard to find comps to use in a conventional appraisal.

I’ve been involved in several situations of this sort. It’s hard to agree on a valuation methodology.

What are your thoughts?