A conservation restriction or easement is a voluntary legal agreement between a landowner and a land trust or government agency that permanently limits uses of the land in order to protect its conservation value. It allows land owners to continue to own and use their land to sell it or pass it on to heirs.
This method of donating land is especially valuable in assembling parts of many properties into a walking trail or river corridor protection zone.
With a Conservation Restriction/Easement (CR) donation the owner formally extinguishes the development rights. The value of the development rights are donated to the Aspetuck Land Trust who monitors the property to ensure that it is not developed and that any restrictions stated in the CR are not violated. The owner retains title to the land and maintains it. An easement may apply to all a portion of the land. Public access is not required although can be provided for.
- The property remains in the ownership of the landowner, who may continue to live on it, sell it, or pass it on to heirs.
- It is flexible, and can be written to meet the particular needs of the landowner while protecting the property’s resources.
- It is permanent, remaining in force when the land changes hands. The Aspetuck Land Trust ensures the restrictions are followed and that there are no violations of the terms of the restrictions.
- Conservation easements can significantly lower estate taxes—sometimes making the difference between heirs being able to keep land in the family and their needing to sell it. In addition, an easement can provide the landowner with income tax and, in many cases, property tax benefits.
Tax Benefits of donating a conservation easement
As of 6/27/14, the special tax treatment of donations of Conservation Restrictions (or Conservation Easements) has expired. We hope Congress will renew it before the end of 2014, The special Conservation Restriction tax incentive, if renewed, will allow a donor to take a deduction of up to 50% of their AGI, and carry forward excess donation value for 15 years. If the majority of the donor's income was from agriculture, they could deduct 100% of their AGI.
The information on these pages are for guidance and planning purposes only. It should not be used to make decisions on specific matters. Tax advantages of easement donations will vary with individual financial situations. Consult a tax advisor or attorney for advice on how a conservation easement would affect your taxes and estate.
The WSJ article below from February 2013 highlights some information about Conservation Easements. http://online.wsj.com/article/SB10001424127887324468104578249664107325972.html?mod=googlenews_wsj#articleTabs%3Darticle
Federal Tax Benefits
There are two main kinds of federal tax benefits available to conservation donors: federal income tax benefits and federal estate tax benefits.
Federal Income Tax Benefits
Donors of land and conservation easements may both claim an income tax deduction under § 170 of the Internal Revenue Code. Section 170(h) of the Federal Internal Revenue Code defines "Qualified Conservation Contributions” indicates the conditions necessary for a conservation easement to qualify for deduction as a charitable contribution. In general, the contribution must be of a qualified real property interest to a qualified organization exclusively for conservation purposes. The IRS has identified Aspetuck Land Trust as a qualified organization.
Specifically, the easement must meet several criteria:
- Be "an easement or other interest in real property that under state law has attributes similar to an easement." The donor can and does retain any rights to use his/her land, such as to sell it, give it away, or transfer ownership. He/She also can continue to live on the property, reserve the right to develop some excludable portion of the property or keep subsurface mineral rights.
- Be donated to a "qualified conservation organization." This includes charitable conservation organizations or governmental units, but not private foundations.
- Be "for conservation purposes" and for the "substantial and regular use of the general public or the community." This includes public outdoor recreation and education, protection of habitats or ecosystems, preservation of "historically important land areas" or preservation of open space that will clearly yield public benefit.
- Be enforceable in perpetuity.
- Have an agreement by the mortgage company that the easement remains in effect with any sale of the property, even if foreclosed.
- Have "documentation sufficient to establish the condition of the property at the time of the gift." Conservation easements can be written for property in any state. The feasibility of using one for a particular property will depend upon the local property taxes, state inheritance taxes and the desire of an agency or organization to receive the easement.
Landowners should consult with an attorney experienced in this area and with their financial advisors or accountants to determine if they would benefit from granting a conservation easement. The legal transfer of the easement must be written very carefully so that the landowner's wishes are carried out and so that the maximum tax benefits are obtained.
Federal Estate Tax Benefits
A donor may also save substantially on estate taxes by donating a conservation easement. Under § 2031(c) of the Code, up to $500,000 may be excluded from one’s taxable estate if he or she had donated a qualifying easement. As with the income tax benefits, the larger the value of the donated easement, the bigger the deduction.
The federal estate tax now affects only estates greater than $5.25 million per person, or $10.5 million for a married couple (2013). The top estate tax rate is 40%. Heirs to land facing estate taxes may wish to consider donating a conservation easement post-mortem, which under Sec. 2013(c) of the code, can both reduce the value of the taxable estate and qualify the heirs for the additional $500,000 exclusion.
The Enhanced Conservation Easement Tax Incentives Renewed for 2013
Congress passed a "fiscal cliff" deal in January, 2013 that renews the enhanced income tax deduction for conservation easements for all of 2013, and makes it retroactive to the beginning of 2012. Donors are allowed to deduct the value of their donation, up to 50% of their AGI in any one year, with the ability to carry over excess donation for as many as fifteen years. A brochure with more details is available on the Land Trust Alliance website at http://www.landtrustalliance.org/policy/tax-matters/campaigns/the-enhanced-easement-incentive.
Noncash Charitable Contribution Deduction
Whenever a deduction exceeding $500 is claimed for a non cash gift, the donor must file Form 8283, Noncash Charitable Contribution Form. If any single gift or group of similar gifts was valued at over $5000, you must also get an appraisal. The Market Value of the property is determined twice by a licensed appraiser, once without the Conservation Restriction (high value) and again with the Conservation Restriction (lower value). The difference between the two is the donation value and is the value deductible on IRS Form 8283. Click here for form instructions.
State Tax Benefits
Connecticut State Tax Benefits - Connecticut provides a state corporate income tax credit for donations of conservation land or easements equal to 50% of the donation's fair market value. A 10-year carry forward period is available to donors whom do not use up the entire credit in the year of its origination. Donated land or easements must a) conserve natural or scenic resources, b) protect natural streams or water supplies, c) conserve of soils, wetlands, beaches, or tidal marshes, d) enhance neighborhood parks, forests, wildlife preserves, nature reservations, or other open space, e) enhance public, recreation opportunities, or f) preserve historic sites. The Connecticut conservation easement tax credit is non-transferable and applies in addition to federal tax benefit.