The Process of Creating

Conservation Easements

Identify the values you want to protect.

This includes the natural values of the land, such as grasslands, wetlands and woodlands that provide wildlife habitat, or open space that preserves a scenic view.  It could also include a certified historical site. 

 

At the same time, a landowner should identify those productive values that they want to maintain.  These values could include farming, ranching, hunting, fishing and current or future improvements to the property (such as provisions for children to someday build a home on the land).

Determine your financial goals.

One goal could be the creation of a charitable gift that results in a federal income tax deduction.  Another goal might be to reduce the value of land in an estate, so that estate taxes can also be reduced.  Still another goal might be to keep the land in production agriculture, or some other business compatible with conservation. 

 

To help determine these goals and others, a landowner should seek the opinion of their financial consultant, accountant, and/or attorney.

Work with a land trust to design the conservation easement terms.

This is best accomplished by walking the land with a representative of the land trust to describe your conservation and financial goals. This will allow the land trust to confirm that the property meets their guidelines and discuss how the landowner's goals can be achieved. It will also give the landowner an opportunity to ask questions and make suggestions that pertain to the easement document.

This meeting will then be followed by a Letter of Agreement from the land trust, to be signed by both parties. The Letter of Agreement is non-binding in a legal sense, but it is intended to establish a mutual understanding of the Restrictions and Reserved Rights to be included in the easement, as well as any costs to the landowner such as a survey, appraisal, legal review, and contribution to the Stewardship Fund.

Seek legal, financial and family advice.

If the landowner has not done so already, they should discuss the proposed terms of the conservation easement with professional legal and financial advisors.  It is also a good idea to make sure that heirs and family members agree with the terms as well.

Provide pertinent property information to the land trust.

This information should include a survey since clear boundaries are essential.  A title report will also be necessary so that mortgages and other encumbrances can be subordinated if they have potential to affect the conservation values.

Draft the easement document.

Typically, the conservation easement document is drafted by the land trust, then submitted to the landowner to be reviewed by his or her legal counsel.

Obtain a baseline documentation of the property.

This is the report that will be used to inventory current conditions on the property for use in future monitoring. The baseline report is usually the responsibility of the landowner, although the land trust may be able to create this report depending on the circumstances.

Obtain a “qualified appraisal” of the land.

If the landowner wants to receive a federal income tax deduction for a donated easement, it is the landowner’s responsibility to have an appraisal completed that documents the value of the donation.  The land trust can not be  involved in the appraisal, although it may suggest a list of qualified appraisers for the landowner to choose from.

Obtain necessary board approvals.

In Nebraska, all conservation easements must be submitted to the county planning commission (if the county has zoning) for an opinion, and then submitted to the appropriate county board or city council for final approval.  The land trust can work with the landowner to obtain these approvals.  The Nebraska Land Trust Board of Directors must approve all easements that it accepts as well.

Make an agreed upon Stewardship Contribution.

Part of this unrestricted contribution will be used to offset the land trust's costs in obtaining the easement, while the rest will go into a permanent Stewardship Fund to help assure future monitoring and compliance.

Sign and record the easement and other pertinent documents.

Other documents might include surveys, mortgage releases, etc.

Celebrate the protection of your land!