Long-standing common-law policies against placing undue restrictions on land owners’ ability to use and transfer property can lead to confusion about the proper implementation of conservation easements, explained Brian Blaesser, an attorney with Robinson and Cole in Boston, who specializes in land use issues. Blaesser discussed the pros and cons of conservation easements Tuesday at the Land Use, Property Rights, and Environmental Forum during the 2012 NAR Midyear Legislative Meetings in Washington, D.C.
Under these easements, land owners voluntarily give an environmental organization or government entity a nonpossessive interest in property for conservation purposes such as the protection of a natural habitat or preservation of a forest or farmland.
“Conservation easements don’t usually involve granting physical access to a property as do other easements,” Blaesser said, but rather exist for some sort of public benefit. Statutes are in place in every state recognizing conservation easements. “But they don’t confer [to] the public any rights to come onto your property,” which is a common misconception, he added. Nor do they take precedence over any preexisting rights.
Conservation easements typically reduce the value of a property, but they entitle the holder to federal and state tax deductions. “But the conservation easements must be perpetual, meaning they have to exist forever, for the owner to get those tax benefits,” Blaesser said.
The perpetuity concept inherently raises concerns for real estate owners. “It suggests a distrust of property owners’ ability to make wise decisions for the future based on current needs, values, and benefits,” he said. “If a property contains a perpetual easement, it can be hard to make land available for other needs like affordable housing.”
On the positive side, conservation easements generally raise the property values of land around the protected area. They also keep properties in private hands and on the tax rolls.