The Easement Process

Timing a conservation easement transaction can be critical in meeting a landowner's needs, or in structuring a real estate sale. It is best to contact the Land Trust as early as possible when considering easements. If an easement is to be accepted by the Hudson Highlands Land Trust, the Land Trust must participate in developing its terms. The general steps involved in placing an easement are outlined below.

Initial Visit

Land Trust staff visits the property, discusses the landowner's preservation and future development options, and assists the landowner in deciding on conservation goals. The staff also assesses whether the property meets the Hudson Highlands Land Trust's criteria for acceptance of conservation easements.

Land Planning Analysis (Optional)

Often, a well-sited home will not compromise the important open space attributes of a property. Planning for some limited development may be the best means of addressing financial and family goals while assuring preservation of the overall character of the property. If the landowner wishes to explore limited development options, the Land Trust will assist in determining what development might be considered without compromising the conservation objectives required for the Land Trust to accept the donation of an easement.

Draft Easement

The Land Trust prepares a draft legal document that reflects the agreements reached between the landowner and Hudson Highlands Land Trust. The document spells out the development rights to be restricted and the use rights to be retained by the landowner.

Final Easement

Once an easement document is agreed upon by both the landowner and the Land Trust it is reviewed by each party's respective attorneys. The Land Trust's Board of Directors or Executive Committee votes to accept the easement.

 Executing and Recording the Final Agreement

The finalized conservation easement is signed and notarized by both parties and recorded with the County Clerk. In some cases, the Land Trust can hold the easement in escrow until adjacent landowners place similar restrictions on their land. The recording of the easement can be postponed until several neighbors act together to place easements.

Documenting the Easement

The Land Trust visits the property to photograph its condition at the time of the easement transaction. The photographs, along with maps and other information, are part of the "baseline documentation" for the property. These records will enable the Land Trust to determine whether significant alterations have occurred in the future.

Endowment Request

The Land Trust requests a contribution to cover costs of documenting the easement, of annual monitoring, and of possible enforcement of the terms of the agreement in the future (see below). The amount requested is usually a small percentage of the value of the easement. Endowments can be considered a landowner's insurance policy to guarantee the long-term enforcement of the conservation easement.

Monitoring and Enforcement

After the easement has been recorded, representatives of the Land Trust annually notify the landowner and conduct a monitoring visit to the property to ensure that the easement agreement is being upheld. If structures are permitted under the easement, the Land Trust reviews plans and monitors construction for compliance with the plans. If a violation occurs, the Land Trust requires voluntary correction, and if necessary, takes legal action to enforce the easement.

Representation Regarding Tax Implications of Conservation Easement Donations

Some conservation easements qualify as “qualified conservation contributions” under Section 170(h) of the Internal Revenue Code.  To the extent they do, a federal income tax deduction may be available.  A deduction generally is not available if the donor lacks “donative intent” – that is, the donor is making the donation because he or she is required to (for example, pursuant to a condition in a subdivision approval or other permit), or in cases where the donor is receiving some consideration or other “quid pro quo” in return for donating the easement.  Each donor must consult with his or her own tax advisers.  No person is authorized to make representations on behalf of HHLT regarding the availability or amount of any such deduction.  If a donor intends to seek a tax deduction from the IRS for making a qualified charitable contribution of development rights, an appraisal of the property must be obtained from a qualified appraiser who follows Uniform Standards of Professional Appraisal Practice.  Whether or not a tax deduction is sought, a preliminary appraisal or "opinion of value" can be obtained by the landowner to determine the effect restrictions may have on the value of the property. The Land Trust can refer the landowner to qualified appraisers, as necessary.   In the event that the donor decides to seek a tax deduction, the Land Trust will request a copy of the completed appraisal upon submission of IRS Form 8283 to the Land Trust for signature.

As part of the closing, each donor is required to sign a standard form (a) acknowledging that neither the Hudson Highlands Land Trust nor any person acting on its behalf has made any representations about the federal or other tax implications of the proposed donation, (b) representing that they are not, as of the date of the easement, required to do so under any condition to subdivision approval or other permit, (c) agreeing that they shall not claim any federal or other deduction or credit in respect of the donation unless, following consultation with a professional tax adviser, they believe in good faith that they are entitled to such deduction.

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