Estate and Succession Planning
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Legal concepts related to the permanent preservation of the natural landscape have existed since the 1930s. It took several more decades for federal and state governments to develop the necessary incentive packages to encourage landowners to take advantage of those concepts and, thereby, contribute to the conservation of natural places. After much maturation, one specific tool (the conservation easement) now provides a great opportunity for the owners of agricultural or undeveloped land to realize the land’s value without having to sell to a third-party developer.
What is a conservation easement? What are the benefits?
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When a person “owns” land, from a legal perspective, this means the person holds a bundle of rights as to a discrete piece of property. As an example, the rights in the bundle include the right to:
- Exclude others from the use of the land
- Develop or improve the land to the owner’s satisfaction
- Extract resources from the land for sale.
An “easement”, in its most basic definition, is a legal means through which some of the owner’s rights can be granted to another – one who does not technically own the land. Most commonly, landowners might recognize “utility easements” or “driveway easements” which, respectively, for example, allow a utility company to run electrical service along the front of an owner’s property (continuing electrical service down the roadway to surrounding property owners) or allow a neighbor to cross the owner’s land to more easily access the neighbor’s property.
A “conservation easement” is a special type of easement. A conservation easement is a right or interest in real property granted by the owner to a person or entity who has an interest in preserving the land.
The easement, in effect, grants the recipient the power to control the land in certain contexts – contexts focused on the preservation of the land in its wild and/or natural state or to protect the land’s historical and cultural significance. Conservation easements often prohibit development on the property while allowing the landowner to maintain certain uses consistent with the overall conservation scheme. A conservation easement’s prohibitions on land use continue indefinitely – burdening the new owner if the property is ever sold.
The grant of a conservation easement does not transfer title or ownership of the subject property.
Instead, the owner keeps title and can continue to use their land in a way that is not restricted by the easement. The landowner and easement holder will agree (as is memorialized in the conservation easement instrument) on the limits placed on the land to protect its natural, historic, or archeological resources as the grantee/easement holder may request. And, this transfer of rights from the landowner to the conservation easement holder often comes with some financial benefit to the owner. In certain circumstances, for example, the owner’s grant of land serves as a charitable donation – a federal income tax deduction – as well as bringing about a reduction in land value – reducing state and local real property tax burdens. In other cases, the conservation easement holder may pay the landowner a sum of money in exchange for transferring the development rights.
How is a conservation easement formed? A conservation easement is created through an agreement recorded in the public records of the county where the land is located. That written agreement is prepared once the landowner and proposed easement holder agree on the rights of the parties and the prohibited uses of the land. These easements are extremely customizable and multiple types of arrangements can be made. While the process may seem straightforward, upmost care must be taken during drafting and landowners should consult with a law firm that specializes in real estate and land development.
Who is acquiring conservation easements development rights? There are multiple public and private entities who are actively purchasing conservation easements or accepting their donations. The State of Florida, in particular, has several such programs available to landowners. The Division of State Lands has already acquired over 140 conservation easements and land protection agreements protecting more than 262,000 acres of land.[1] Other state programs that focus on conservation easements include the Rural Land Stewardship Area Program,[2] the Rural and Family Lands Protection Program,[3] and Florida Forever.[4]
There are also private and nonprofit organizations who are interested in working with Florida landowners. The Land Trust Alliance features multiple regional non-profits who have completed conservation easements.[5] The Nature Conservancy[6] and Tall Timbers[7] also support individuals and companies seeking these types of agreements.
No matter if the recipient is a government or private entity, securing a conservation easement in your land can be a great opportunity to both protect it and extract lasting value.
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[1] Conservation Easements, Florida Department of Environmental Protection (Apr. 25, 2023)
[2] Rural Land Stewardship Area Program, Florida Department of Commerce (2023)
[3] Rural and Family Lands Protection Program, Florida Department of Agricultural and Consumer Services (2023)
[4] Florida Forever, Florida Department of Environmental Protection (Sep. 22, 2023)
[5] “How to conserve your land“, Land Trust Alliance (2023)
[6] The Nature Conservancy Florida (2023), https://www.nature.org/en-us/about-us/where-we-work/united-states/florida/
[7] Land Conservancy of Tall Timbers, Tall Timbers (2023), https://talltimbers.org/land-conservation/land-conservation-of-tall-timbers/
This article was co-written with Myles Roth, a 2024 J.D. Candidate with the University of Tennessee College of Law. Myles has served as a Summer Associate and Summer Law Clerk with two firms in Tennessee and worked with the University of Tennessee Research Foundation as a Commercialization Analyst Intern. Before pursuing his J.D., he served as the Consulting Operations Manager at a pharmaceutical and biotech consulting firm. He was awarded his undergraduate degree in Political Science from the University of Colorado Boulder. Myles can be contacted via email at mroth6@vols.utk.edu.
