You’ll find the answers to many of your questions about conservation easements, including rights and duties, access, tax benefits, and more listed below. If you don’t find your answer in the FAQs below, contact us.
Who may give a conservation easement?
Any landowner of record may donate a conservation easement. If there is a lien holder on the property, the lien holder must accept and agree (subordinate) to the terms of the easement. Taxes are still paid on the property by the owner of record.
What rights and duties does the landowner retain?
Except for the specific restrictions set forth in the conservation easement document, the landowner retains all other rights which were initially conveyed when the property was acquired. The land can be sold, leased, and/or transferred to heirs upon the death of the original owner.
Recreational activities such as hunting and fishing, timber management activities, and the use of other natural resources, such as minerals, are allowed as long as these activities are not restricted in the easement.
Does my property qualify for a conservation easement?
If your property is undeveloped, forested in native species, or has a minimum amount of agricultural or intense timber use, it will meet the basic qualifications for a conservation easement.
Most property with prairie, upland or bottomland hardwoods, mixed pine/hardwoods, or longleaf pine habitat types qualify for the development of a conservation easement.
Does every easement qualify for an income tax deduction?
No. To qualify as a charitable contribution, conservation easement donations must be perpetual, must be donated to a qualified organization (a non-profit land trust), and meet one of the “conservation purposes” tests outlined in the Internal Revenue Code (IRC). Easement donors should be aware that these contributions are subject to review by the IRS.
Does every easement have to be perpetual?
For the donation to qualify for income and estate tax benefits the conservation easement must be perpetual and apply to all future owners. Some organizations may be willing to purchase conservation easements. Easements that are purchased can be designed for a limited period of years.
For example, the Wetland Reserve Easement (WRE), administered by the Natural Resources Conservation Service (NRCS), pays landowners for conservation easements on restored or existing wetlands that provide significant habitats for birds and other wildlife.
The Agricultural Land Easement (ALE), also administered by the NRCS, pays landowners for conservation easements on restored or existing grasslands that provide significant habitat for birds and other wildlife.
The Healthy Forests Reserve Program (HFRP), also administered by the NRCS, pays landowners for conservation easements to restore and protect rare forest types, such as longleaf pine, that contribute to the recovery of a declining, threatened, or endangered species.
What are the “conservation purposes” recognized by the Internal Revenue Code?
The IRS Code Section 170(h) requires that conservation easement donations meet one or more of the following conservation purposes:
• protect relatively natural habitats of fish, wildlife, or plants
• preserve open space, including farms or forests, either for scenic enjoyment or in keeping with an adopted public policy
• keep land for public outdoor recreation or education, and/or
• preserve historically significant land or certified historic structures
The conservation purpose of most conservation easement donations in Mississippi is derived from the protection of open space or fish and wildlife habitat.
Does a conservation easement grant access to my property?
No. Landowners retain control of access to their property. They may allow access to specific groups or the public in their conservation easement, but landowners are not required to do so.
What does “significant” mean?
In addition to the basic conservation purpose that the IRS requires a landowner to meet, the IRS also requires that the conservation be significant.
Significant conservation includes land within the Black Prairie, Coastal Plain, Lower Mississippi River Alluvial Plain, land that is beneficial to the North American Wetlands Conservation Act, the North American Waterfowl Management Plan, the Environmental Monitoring and Assessment Program, the Partners in Flight Program, the Clean Water Act, the Endangered Species Act, the conservation provision
Can a conservation easement that protects open space in a real estate development qualify for an income tax deduction?
No tax deduction will be allowed if the donation is made under compulsion or in exchange for a benefit the landowner expects. Also, charitable income tax deductions for real estate developers are generally limited to the tax basis of the property. The property owner must be prepared to defend the appraisal of their deduction.
Can I still sell my property?
Yes. Property with a conservation easement can be bought, sold, and inherited. However, the conservation easement is tied to the land and binds all present and future owners to its terms and restrictions.
What will a conservation easement mean for my children?
Future landowners, including family members, will abide by the terms of the conservation easement agreement and will continue the relationship with the organization that holds the easement.
A conservation easement may reduce estate taxes paid by heirs. Families should consider the trade-off between conservation goals, tax benefits resulting in reduced property value, and permanent land-use restrictions.
What if more than one person owns the property?
All owners of a property must agree to the terms of the conservation easement before it can be granted legally.
Can I still build on my property?
The landowner may retain specified development rights in a conservation easement agreement. For example, a conservation easement protecting a farm or ranch may allow construction compatible with agricultural operations and changes in crop selection or management practices. A conservation easement may specify the location, size, and type of one or more residences or other development on a property.
What if my property is mortgaged?
For a conservation easement to qualify for an income tax deduction, the landowner must acquire a mortgage subordination agreement from the mortgage holder. With this document, the mortgage holder agrees to follow the terms of the conservation easement in the event of foreclosure.
What if I don’t own the mineral rights to my property?
This is a complicated issue that should be discussed with professional advisors. However, a landowner who does not own the mineral rights to their property can qualify for income or estate tax benefits if ownership of the mineral rights was separated from the land before June 13, 1976, and remains separated today if the owner proves that the probability of surface mining occurring on the property is “so remote as to be negligible.”
Where are conservation easements recorded?
Like deeds or other easements, conservation easement documents are recorded with other land records in the county or parish where the property exists.
What restrictions can be included in a conservation easement?
Conservation easements restrict the future development of the property. However, they are flexible and may include or exclude almost any restricted use that is agreed to by the landowner and the conservation organization holding the easement.
For example, the easement can be so restrictive that it mandates that the land be left in its natural state. On the other hand, it is common for easements to allow for various activities such as farming, hunting and fishing, planting of food plots, and, in some cases, limited structural development.
Can conservation easements be changed or revoked?
Because conservation easements qualifying under IRS regulations are designed to be permanent, landowners should assume that it will not be possible to revoke an easement. However, conservation easements may be amended if both the easement holder and the landowner agree to the terms of the change and if the IRS recognizes the easement’s conservation purpose is not affected.
Can a conservation easement be donated by will?
Yes. The landowner must contact the intended easement holder before conveying the easement by the will to ensure that the organization will accept the donation. If the easement qualifies under federal tax law, its value is subtracted from the landowner’s taxable estate, reducing estate taxes for heirs.
Can the conservation easement be placed on just a portion of a tract of land, or must it be placed on the entire property?
An easement may be applied to an entire property or to any portion of it, depending upon the character of the land. It is not uncommon to have a portion of particular land ownership fronting a natural lake area, riverfront, or bottomland hardwood with associated wetland habitats. Generally, properties with the highest risk of development having the most desirable development characteristics carry the most advantageous tax benefits.
What can a conservation easement mean to a landowner?
By placing a conservation easement on a particular parcel of land, a property owner can be assured that the land will forever remain in a natural state, unaltered by humans. Paradoxically, a landowner may be rewarded personally and philosophically by the knowledge that protective covenants are in place to promote their specific conservation ethic while receiving immediate financial benefits through the tax advantages that accrue.
What are the financial benefits to the landowner?
A real estate appraiser experienced in the use of conservation easements will establish the conservation easement’s value. The appraiser establishes the property’s value with and without the easement. The difference between the restricted and unrestricted value of the property is the amount considered a charitable contribution for income tax purposes. The easement may also reduce the value of the property in the landowner’s estate, thereby reducing the amount of estate taxes that will be paid.
A Handbook for Mississippi Landowners
This handbook is the guide for landowners in Mississippi who are interested in learning more about conservation easements. It provides background knowledge about easements, information about the steps involved, the tax benefits of conservation easements, and more about setting up a conservation easement.