How to Place A Conservation Easement
1. A Landowner should discuss his intent to place a conservation easement or make a gift of land with the Land Alliance. Land Alliance will arrange to visit the property to discuss the landowner’s goals, needs and interests regarding the property, and to evaluate the conservation values of the property. Once the Land Alliance staff concludes that the property meets our conservation guidelines and the landowner decides to move forward with the conservation easement, the project must be reviewed and approved by the Land Alliance’s Conservation Committee. After a project is approved by the Conservation Committee, the project must be approved by the Land Alliance’s Board of Trustees.
2. A Landowner should also discuss the advisability of such a transaction with their advisors. Throughout the entire process of donating a conservation easement, the Land Alliance facilitates the transaction; however, we strongly recommend that the landowner retains his/her own advisors, such as an attorney, accountant, appraiser, and surveyor. The Land Alliance is not permitted to provide landowners with legal or tax advice. Landowners should be advised about how the potential federal income and estate tax benefits (see example below) as well as a New York State Tax Credit for a qualified contribution of a conservation easement affects them.
3. Once a landowner has reached an agreement with the Land Alliance and hired counsel the landowner should do the following:
- Locate an accurate survey of the property or retain a surveyor to create an updated survey. The survey will be important for the appraiser to determine the metes and bounds of the land to be conserved.
- Retain a qualified independent appraiser to determine the current market value of the land in question and the value after the easement is placed. Land Alliance can provide a list of qualified conservation appraisers. Please note that under IRS regulations an appraisal must occur no earlier than 60 days prior to the date of the contribution of the easement and no later than the due date of the income tax return on which a deduction for the gift is first claimed or reported.
- Initiate Title Search to insure that there are no encumbrances on donor’s land. This title search can be initiated by landowner’s lawyer or Land Alliance for a fee. If a mortgage exists on a property, the mortgage must be subordinated to the conservation easement so that it cannot be eliminated should the mortgage be foreclosed.
4. After completing steps 1 through 3, the Land Alliance, based on previous discussions with the landowner, will prepare the first draft of the conservation easement agreement which will be sent to landowner’s counsel for review. At this time Land Alliance will initiate preparation of baseline documentation to establish the conservation value and condition of the property at the time of the gift. This document becomes an exhibit to the conservation easement and is required by tax law. Baseline documentation will include the description of the property including boundaries, important natural resources and cultural features, existing structures, clear descriptions of reserved rights and prohibited uses, maps, photographs, etc. and be signed by the preparer. The landowner will be required to sign this document at closing.
5. Once the terms of the easement are agreed to, landowner must provide land trust with copies of appraisal and survey. Land Alliance will provide landowner with copy of baseline documentation for their review. Once all documents have been received and agreed upon, a formal closing will be scheduled. Land Alliance reserves the right to request a review appraisal at this time if there is any question about the appraisal or survey provided. If all documents are in order a closing date will be set.
6. After the conservation easement is signed and recorded, Land Alliance begins its stewardship program. We are required by law to have the resources necessary to uphold the terms of the conservation easement restrictions. We fund this obligation, in part, by charitable gifts made by conservation easement donors. Land Alliance staff and/or trained volunteers visit the property at least once each year to monitor the conservation easement to ensure that the terms of the easement are being upheld. A contribution from the landowner for stewardship purposes would be greatly appreciated. It can be paid at closing or over a period of time.
7. After the closing, Land Alliance will record the easement agreement with appropriate government agencies. Landowner must file all appropriate tax forms. Current tax rules require that the person making the contribution file an IRS Form 8283, Non cash Charitable Contributions, along with the tax return for the year in which the gift was made. Both the Land Alliance and appraiser must sign IRS Form 8283 verifying transaction and fairness of appraisal. Easement agreement, baseline documentation, subordination of mortgage, baseline documentation and board resolution must be included with easement agreement.