Before you can decide what is right for you and your land, review some basic definitions associated with the conservation tools commonly used in estate planning for real estate assets.
Whole Interests in Land versus Conservation Easements
There are two basic kinds of conservation transactions: whole interests in land and conservation easements. Just like it sounds, whole interests in land represents the landowner’s entire interest. When a landowner grants his whole interest, he no longer retains any ownership of the property. In contrast, when a landowner donates a conservation easement, he continues to own the property but gives up the right to develop it in certain ways.
Public versus Private Easements
A private easement – usually between abutting owners, but not necessarily – is a fairly common method to allow others access rights to land. For example, an abutting owner may need to cross the corner of a neighbor’s property with a sewer line, or a portion of a driveway. The abutter would ask his neighbor for permission, but to make sure the right stays with the property and not just the owners, he would also exercise an easement. Such an easement, whether it is a sewer line or a driveway, might also be called a “deeded right-of way.” Usually the person requesting the easement also agrees to pay for all legal expenses, including the costs of filing the new deeds in town or county records.
Since easements stay with the affected land titles, they are almost always permanent. The important thing to remember about a private easement is that one title benefits while the other does not, even though a lack of benefit is not necessarily a detriment. The sewer line crossing a corner of a neighbor’s property, for example, should not in any way detract from property value.
A public easement is one that largely benefits society. When a farm or forest owner transfers the development rights to a qualified organization, the easement that encompasses those development rights have no value to the organization that agrees to accept them. Why? Because the organization also agrees to forever hold the development rights and to ensure that all future title-holders will abide by the easement conditions. In other words, the land will always be used for farming or forestry purposes, but more importantly the land will never be developed.
Donations, Purchases, and Bargain Sales
A donation occurs when a private landowner gives the property to a land trust or government agency for nothing in return. In some cases, land trusts or governments will have funds available to purchase land or easements. A bargain sale is a hybrid between a donation and a purchase. A bargain sale occurs when a private landowner receives some money in return for the property, but not the fair market value. For example, let’s say you own property worth $100,000 and sell it to a land trust for $60,000. You have made a bargain sale, and may claim a deduction for the value of the property, $40,000, that was donated.
A land trust is a nonprofit organization that aims to protect land from development. Land trusts are not government entities, although they often work closely with governments. Land trusts are also not trusts in the legal sense of the word, as in a family trust.
Gifts During Life versus Bequests Made in a Will
Most people grant a conservation easement while they are alive in order to benefit from the substantial income tax and property tax savings. However, some individuals are not in a position to make a gift during their lifetime. Instead, they may choose to add a codicil to their will in which they make a bequest. By doing so, they can still benefit from significant estate tax savings.