Creation of a conservation easement may be a good deed, but, as the saying goes, no good deed goes unpunished. There are significant costs in doing a good deed.
Start a trend! Ask a nonprofit, usually a land trust, to purchase your conservation easement. However, few nonprofits or land trusts have the funds to purchase a conservation easement.
Some counties have established open space districts that impose property taxes to finance the purchase of "conservation easements." A majority vote of the people of the created district established the boundaries, property tax, lifetime, and governing board. The district purchases those conservation easements that best serve their mission.
Because a conservation easement is an interest in land, it requires a document, like a property deed, that must be recorded in the county recorder?s office. It is a special kind of ?deed? you could write and record yourself. Purchase a copy of existing conservation easements from the county recorder?s office or land trust and/or obtain a book like The Conservation Easement Handbook published by the Land Trust Alliance and Trust for Public Land and do it yourself. However, to do it right you need expert help in three areas: legal, financial, and ecological.
A nonprofit land trust embodies a good deed: it receives donations of conservation easements that qualify the donor for a charitable tax deduction. The land trust may have a pro bono publico lawyer, someone who donates her time for the public good by helping to draft the conservation easement deed. But it is your responsibility to make sure the easement is drafted to meet your concerns. You may need to hire a lawyer or conservation easement expert to help you. The land trust may provide ?Eco-assistance,? or you may have to hire someone to consider the eco-impact of your conservation plans. Your land must be appraised before and after the conservation easement to determine the value of your contribution for tax purposes. Photographs, inspections, and descriptions need to be prepared and recorded to establish the baseline of what you wish to keep undisturbed. Finally, annual monitoring and legal protection against future owners or third parties are included in the land trust?s cost requirements.
If you do not need a charitable deduction on your income tax or a reduction in the value of your estate because it?s not big enough to be subject to state or federal ?death taxes,? you open the door to significant cost reductions. Suppose your neighbor has similar ideas. You could both accept interlocking and mutual deed restrictions to protect your land ?like? a conservation easement. You will need expert help to create the deeds and ecological expertise, but you won?t spend money on appraisals. Depending on deed restrictions, you may not need baseline documentation. If the deed restrictions are expressed in terms of easily observed and/or flat prohibitions and if they make ecological sense, you reduce monitoring. Conservation practices through sustainable as well as certified forestry techniques can reduce costs by producing income from forested lands. Finally, the use of voluntary mediation and mandatory arbitration provisions can significantly reduce the cost of legal enforcement.
Having recently visited Hungary, Croatia, and Romania, I have discovered that we are able to trust and cooperate with each other on a scale not understood or even permitted in those countries. In Croatia, a notary is usually a lawyer who must review a private transaction before it has any legal effect. The notary?s fee is shared with the government. In California, a notary is someone who acknowledges that you are who you say you are only to allow recording of a legally binding document. The document is legally binding when it is signed. It may be challenged after it has been signed and recorded. In Croatia, it is challenged before it is signed and recorded. We generate social power, separate from the government, whenever we independently trust and cooperate with each other. We also generate financial power. Cooperative creation of conservation easements or deed restrictions earns money because it saves on costs. Ben Franklin was right.
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TOC for Forest & River News, Fall 2000