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The "Rest of the Story" on Conservation Easements
Wednesday, July 31, 2013 • Posted August 1, 2013

A recent story regarding conservation easements did not adequately inform the readers about all of their consequences. Landowners deserve to know the “rest of the story.”

Advocates of conservation easements like to say they are “voluntary agreements.” That is true, but once signed, they are nothing of the sort. However, it is strictly the right and choice of the individual landowner if they want to place a conservation easement on their land.

American Stewards of Liberty only wishes to educate as many landowners as possible to all the consequences so they can make an informed decision.

Nobody opposes clean water, pure air or protecting our environment, but there seems to be an astonishing amount of propaganda for conservation easements.

With government ever-expanding into our lives, preserving land is another form of intrusion. Or, more precisely, preserving the land is about control. Government wants as much private land as possible without paying for it as required by the Fifth Amendment to the Constitution.

Invoking the environment seems to be an acceptable way of taking someone’s land for the greater good and not paying for it or paying a reduced amount through conservation easements.

Conservation easements are, by design, used to take away most of a landowner’s bundle of rights, which for the most part include the right to possess, use, sell, modify, develop, or lease. Conservation easements purchase most of those rights preventing any appreciation in value and leaving the landowner holding nothing but title to the land, the ability to prevent trespass, and the privilege of paying taxes.

Conservation easements are legally binding special contracts that last forever and must be approved by the IRS to give it the desired effect – tax incentives and tax abatements. It is a “donation” by the landowner to a land trust or government body that then allows the landowner to receive a tax break in return.

Conservation easements lower the value of the land by restricting specific uses through a management plan. This is what creates the tax benefit, but is a onetime event that will only benefit the original landowner. It attaches to the land forever and cannot be changed by the owner, his children or great grandchildren.

Some major concerns regarding every conservation easements include:

1. In perpetuity. Some are trying to make them for a term of years, but in reality, you cannot receive the same tax benefit, if at all, from one that is not in perpetuity.

2. You become a “serf.” The holder of the easement becomes the dominant owner of the estate and the owner of the land becomes the subservient (lesser of the two) making the government or the Land Trust the managing partner of the land.

3. The landowner agrees never to perform any act “inconsistent with the purposes of the conservation easement.” If the managing partner (government) decides to change the priorities or the “conservation purposes” of the easement, the landowner must abide.

4. The holder of the easement can transfer the conservation easement to a third party, but only to a government entity or another land trust and they then become the managing partner in the land with sole discretion as to what can and cannot be done.

5. A third party can have the terms of the agreement enforced by taking the landowner to court.

6. Finally, any existing conservation easement can be condemned and used to mitigate (replace) habitat being destroyed by any development or government project.

Land in a conservation easement is a ticking time bomb waiting to be condemned.

Read the entire document, have your attorney and accountant explain all the ramifications to you before you make the decision to place your land in a conservation easement forever.

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