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F The conservation easement has been widely used by landowners in Maryland, but some confusion remains about what a conservation easement really is. In view of this, the Maryland Environmental Trust (MET) has prepared this Guide to help property owners work through the various aspects of a Deed of Conservation Easement. Disclaimer: The information and data on this page is for guidance and general planning purposes only. It should not be used to make decisions on specific matters. What is a conservation easement? A conservation easement is a legal agreement between a landowner and a land trust (like MET), which restricts the future uses of the landowner's property. It is binding on all future owners of the property. An easement often specifies such things as the amount of subdivision that is allowed on a property, or the number of houses that may be built. It does not grant public access to a property unless the landowner specifically wishes to allow it. Conservation easements are tailored to fit a landowner's individual situation, and the terms of the easement are arrived at only after detailed discussions between the landowner and the land trust. A landowner may choose to have his or her easement held jointly by two land trusts, such as MET and a nonprofit local land trust. What are some of the benefits of Conservation Easements? Through a conservation easement, landowners can protect their property from development for future generations: for example, they can ensure that an agricultural property will remain a farm, that an historic estate will remain untouched by subdivision, or that a stream or stretch of Chesapeake Bay shoreline will remain forever wild. In addition, the donation of a conservation easement to a land trust may significantly reduce estate and inheritance taxes, federal and state income taxes and local property taxes. What is the process? Establishing a conservation easement is a straightforward process; MET has the expertise to guide interested landowners through the various steps. MET works with them (and their financial and legal counsel, if they desire) to create the legal document. MET also completes a baseline inventory of the property to record the agricultural, scenic, historical, and wildlife values the easement will protect. (The inventory is approved by the landowner.) In order to take advantage of the estate and income tax benefits of donation of an easement, the landowner must get an appraisal to establish the easement’s value. MET can provide lists of qualified appraisers. Lastly, the easement is signed and recorded in the County Land Records. What is in the easement? The following is an introduction to the issues a landowner should discuss with MET when creating the conservation easement document. They should view the following paragraphs as a starting point for creating an easement, and, if necessary, suggest other issues or ideas. Landowner concerns will be incorporated, as long as they meet MET policies and state law, and work to preserve agriculture and open space. Roman numerals and letters, below, correspond to paragraphs in the MET Model Easement. Please note the narrative does not cover every paragraph. "WHEREAS" CLAUSES These clauses introduce the conservation easement. They spell out who the parties to the easement are, describe the property which will be subject to the easement, and state the purposes of the easement. Note that the landowner is the Grantor (person giving the easement) and MET is the Grantee (organization receiving the easement). If the easement is held jointly with a local land trust, that organization is also a Grantee. DURATION OF EASEMENT (Article I) In order to receive tax benefits from a conservation easement, the easement must be of perpetual duration. In other words, every provision of the easement must apply to the land forever and bind future owners, heirs, and their agents. PROHIBITED AND RESTRICTED ACTIVITIES (Article II) The landowner and MET should discuss the landowner's long term vision for the property, including restrictions on use of the property. Private property ownership includes a number of rights. By granting a conservation easement, a landowner agrees to give up some of those rights. The following list describes some of the typical rights that landowners choose to give up in order to receive the benefits of a conservation easement. Activities (II.A.) Other than farming, forestry, and horticulture, commercial activities are not allowed under a conservation easement. However, landowners may conduct small-scale commercial activities inside residential and agricultural buildings and sell their agriculture, forestry and horticulture products. Signs (II.B.) MET's conservation easement protects the scenic character of a property by only allowing signs for limited purposes. These include advertising the sale of goods and services produced on the property, historical information, and protection by state or local environmental laws. Trash (II. C.) Easements prohibit the dumping or accumulation of trash on the property, other than the property's farm-related earth materials. Excavation (II.D.) Under the conservation easement, the landowner can only excavate for construction, agriculture, forestry, or erosion and flood control measures. Wetlands (II.E.) The destruction of wetlands is not permitted. Timber Harvesting (II.F.) The landowner and MET may work out various plans on how to handle the cutting of trees on the property. Often easements allow commercial timbering that follows State guidelines for preventing soil erosion. Some easements may limit clearcutting. Landowners may also choose to prohibit tree cutting on part or all of their property, with exceptions for dead or diseased trees, firewood, maintenance, and wildlife habitat management. Structures (II.G.) The number of residential buildings may be restricted to the existing residence(s); or a limited number of future dwellings may be approved by MET's Board of Trustees. The conservation easement also allows for the construction of structures to serve a home (such as a garage or swimming pool) and for agricultural purposes. Typically, all structures may be maintained, expanded, or replaced. Construction of necessary roads is also permitted. However, construction of roads on the easement area to access other land is generally not permitted. Subdivision (II.H.) As with the number of residential buildings (II. G.), the number of parcels may be restricted to the existing lot (s); or a small number of additional lots may be retained. MET also may include a provision to convey the area under easement as a single parcel, even if many parcels exist. Vegetative Buffer (II.I.) If a property has a river, creek or Chesapeake Bay shoreline, a conservation easement will require that grass, shrubs or trees act as a vegetative buffer strip to protect the body of water. The strip is to be 100 feet wide (with some exceptions). Manure, compost, pesticides, herbicides and fertilizers are not to be applied in this area. An exception may be made for use of the buffer for grazing livestock. Conservation Practices (II.K. and II. L.) The landowner pledges general good resource management and stewardship of the property. ENFORCEMENT AND REMEDIES (Article III) One of the major responsibilities of the organization which accepts a conservation easement is to make sure the terms of the easement are being followed by all future landowners. MET monitors the easements it holds primarily by inspecting the property on a regular basis. Landowners always receive advance notice of a visit and interiors of buildings are not monitored. If we discover the terms of the easement are not being followed, the landowner is asked to correct the problem. If the problem is still not corrected, MET has the right to enforce the easement through the legal system. When an easement is held jointly with a local land trust, that organization shares the monitoring and enforcement duties with MET. PUBLIC ACCESS (Article IV) An easement does not grant public access to a property unless the landowner specifically wishes to allow it. The land remains in private ownership. MISCELLANEOUS (Article VI) Transfer of the Easement (VI.A.) In the unlikely event that MET ceases to exist, provision is made to transfer the easement to another qualified conservation organization. Transfer of the Property (VI.B.) Landowners are completely free to sell, mortgage, or otherwise transfer their ownership interest in the property. The conservation easement, however, will stay on the property and restrict future owners. MET requires notice before the property is transferred in order to keep our records up to-date. Value of the Conservation Easement (VI.D.1) Landowners must provide a copy of their appraisal to MET. Termination and Eminent Domain (VI.D.2 and 3) In either of the unlikely events that as an MET easement is terminated or taken for public use under the use of Eminent Domain (these have never occurred), provisions are made in the easement. Amending a Conservation Easement (VI. E.) An easement may only be amended by joint agreement of the landowner and MET. MET will only consider amendments that further protect the land and are in keeping with the intent of the person who originally granted the easement. Subordination (VI.I.) If there are any mortgages, or deeds of trust affecting the property, the landowners agree to subordinate them. This means that a foreclosure on the mortgage will not affect the easement. CONCLUSION As the above provisions demonstrate, landowners have a lot of flexibility and input into the terms of a conservation easement. As long as MET policies, state law, and purposes of the easement are closely followed, a landowner and MET can create an easement that satisfies the needs of the landowner. This document provides a general explanation of how conservation easements work and is only a guide. The conservation easement that is signed and recorded in the land records is the binding agreement. The Maryland Environmental Trust thanks you for your interest in protecting Maryland's farms, forests, and open spaces. Please call our staff with any questions you might have at 1- 877-514-7900 (toll-free) , or direct your inquiries to The Maryland Environmental Trust, 100 Community Place, First Floor, Crownsville, Maryland 21032. Our website, with much additional information,is www.dnr.state.md.us/met.
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