Conservation Easements

[Ebenezer]

The point I was making is that the restrictions on "development" also place significant restrictions on agricultural use and may significantly reduce the value of the property when sold. Any intensive agricultural use that requires a major building or road and parking will not be allowed. New grain bins, chicken or hog houses, greenhouses and such probably not allowed. A person could certainly have free range chickens for eggs or meat, but not able to live on the property (in this example case) to tend to those chickens. Chicken houses here allow a person to generate enough income to support a family. Free range chickens would not. Point being is that people need to understand all the implications of these agreements. Restrictions that last forever affect more than just what the owner at the time wants. And that is the point of those programs - good or bad.

You cannot gravel a road or put a gravel heavy use area to feed hay on grassland easements: destroys the grass.

 

[Mark Reynolds]

I have never heard of a conservation easement around here. We have a powerline that goes through our property and we haven't had any issues. It has been there long before we bought the property.

I have only seen them twice since we've been here in 7 years. Once they sent a big group of guys in to clear the dead standing trees that might fall on the lines.

The other time they just 2 guys checking the poles. That time i came back to the house from the other side of the farm to grab my gripple tool that i forgot. I heard an utv coming from where it wasn't supposed to and sure here comes these two guys.

I drove over to them and put my utv right in front of their bumper and parked it and asked if I could help them. The one guy saw my rifle I carry in my utv and stuttered a bit trying to explain what they were doing. The other guy you could tell has done this before and was calm and explained everything and then I saw their shirts and I was like "Oh ok! How was everything?" I'm pretty sure they have their utv labeled now. Lol.

LOL. If I didn't already know you were in my back yard I would have guessed you were a neighbor based on what you said here. We don't have conservation easements in this part of Ohio because all the mineral rights have been sold off to third parties years ago (coal mining companies). The mineral rights are required to be connected to the property as part of the conservation easement. As for the way you greeted them, I don't blame of fault you one bit. That is fairly standard around here from producers. It is meant to intimidate and it does. I've been greeted like that a few times as a grazing specialist out walking pastures. Not just by the landowner, but also by neighbors watching out for the landowner and their property. Trespass hunters can sometimes be a problem around here, as well as UTV joy riders. I'm neither of those, but I am a body that doesn't appear to be where I'm supposed to be without being stopped and questioned.

We do have both power line and gas pipeline easements around here. I can't say I recall many instances of a producer getting sideways with a power line company other than someone possibly doing something under a power line the easement/power company didn't allow or the power company getting a bit over zealous with spraying and ending up taking out part of a pasture. Gas lines are a bit of a different story with UTV use/checking on wells/tanks, abandoned wells/tanks, gates left open, and UTV damage to access lanes during inclimate weather conditions and UTVs notoriously spreading seed from invasive species/vegetation all over the place.

 

[Dave]

I don't think you are right Dave. Most power line easements won't allow any structure under them, even a outhouse. I had one where they would not even allow part of a pond I was going to have dug back up under the line.

As I said is sorry extremely steep range land. The only part of this easement you could drive is the very top tower which would take a snowmobile to get to late Nov to April. The rest you would need to be on foot or horseback. It has sparse short grass that is less than knee high and an occasional sage brush. If they don't want me to do anything there that is fine. There is no way I would or could do anything there anyway.

 

[simme]

I agree completely. There are pros and cons to everything, and I do mean everything, we do as individuals, a community, and as a nation. Everything we do, no matter what it is, has an impact on what will happen in 5 minutes, days, weeks, months, and years from now. Some of that we can forsee, some of that we can speculate on, and some of that we don't (or didn't) have a clue that what we did today would have that impact on something 5 years from now, either good or bad. Ultimately we have to make a decision(s) one way or another, and you have to also realize that not making a decision is a decision in itself.

I am certainly no expert on these conservation easements, but I am concerned about the language and implications that things remain as they are forever, and no changes allowed forever. Obviously, conservation practices of 60 years or so ago do not all align with current conservation practices. Practices like drainage systems and runoff have changed considerably. Not sure if the "leave it like it is" approach will hinder future practices that might be improvements over current ones. Again in regard to best agricultural use. One thing to limit use to agricultural use only, but to limit it to the existing agricultural use and practices may not be the best use for the future. Forever is such a long time.

 

[Mark Reynolds]

I am certainly no expert on these conservation easements, but I am concerned about the language and implications that things remain as they are forever, and no changes allowed forever. Obviously, conservation practices of 60 years or so ago do not all align with current conservation practices. Practices like drainage systems and runoff have changed considerably. Not sure if the "leave it like it is" approach will hinder future practices that might be improvements over current ones. Again in regard to best agricultural use. One thing to limit use to agricultural use only, but to limit it to the existing agricultural use and practices may not be the best use for the future. Forever is such a long time.

I understand what you are saying. I am not an easement specialist or expert either, so I don't have all the answers here. I do not know the extent of the statement "leave it like it is" and how far that goes. However, the definition of conservation is "wise use", so there are things that can be done on these parcels of land. For example, I know for a fact that these parcels of land can and do have/allow EQIP (Environmental Quality Incentive Program) contracts on them, as well as other NRCS programs that involve conservation improvement practices. I do not know if there are any practices that are within these programs that are/would be prohibited. That would be a question for the easement specialist. I do not think of an easement as a restriction on a piece of property that is a "will only allow x, y and z". I think of it more of as a ban that "does not allow a, b and c". With that in mind, I don't see an easement being a ban to newly developed conservation practices somewhere down the road. There may be some interpretation of the easement that has to take place as well. Again, its a question better answered by an easement specialist than me.

 

[Mark Reynolds]

With a conservation easement you have a new co-owner of your land. Every easement is as unique as the property it is being placed upon. Outline potential future building envelopes, utilities corridors, roads, fields, creek crossings, ponds, etc. Once you have this new co-owner it gets virtually impossible to change anything or construct new infrastructure that was not in the easement agreement. For example I know of a ranch that put the land in an easement. They decided they would really like another hay shed just outside the headquarters building envelope and wanted to trade an equal amount of land on the other side of the headquarters. No go. Couldn't get it worked out with the easement owner - and this was an ag focused easement owner. Easements can be good, but need to be very careful. They are a much better deal when the next door neighbor has one that will preserve the view from your own ranch and you can leave your land unencumbered.

You are correct that easements can't be changed or altered, except through messy legal court proceedings, a lot of time, and restitution paid. However, the easement is a legal document attached to the property that the ag producer owns. There is no new co-owner/ownership of the property. The original property owner/owners are still the sole owners of the property. No-one has/is added to the deed and the property is still the original owners to sell if they so choose. The entity/agency/person/organization that the easement was created by, for or with has no say in the ownership of the property.

 

[GoWyo]

You are correct that easements can't be changed or altered, except through messy legal court proceedings, a lot of time, and restitution paid. However, the easement is a legal document attached to the property that the ag producer owns. There is no new co-owner/ownership of the property. The original property owner/owners are still the sole owners of the property. No-one has/is added to the deed and the property is still the original owners to sell if they so choose. The entity/agency/person/organization that the easement was created by, for or with has no say in the ownership of the property.

I am well aware of the legalities of conservation easements as I do a substantial real estate law practice. What I am saying is that when you sell a conservation easement you are selling the development part of your "bundle of sticks" that make up your "fee simple" property interest. You now have a "co-owner" of the property who owns the development rights. A conservation easement has to meet certain standards of the interest conveyed in order for the seller to receive the tax benefit for donating the development right or payment for the right from the conservation easement grantee (the value of the land with all surface rights less the value of the land with the conservation easement). Your new co-owner does not have a possessory interest, but does have the right and duty to enforce its interest. If long term preservation from development is the goal then a conservation easement can meet that goal. However, it is intended to be perpetual, and at some point the neighborhood may change so drastically that it no longer makes any sense. I view conservation easements as the last option to use of all the options, but sometimes it is the only one that achieves the goals. It is crucial to make sure that what is granted and the rights reserved to the grantor allow the grantor and their heirs to continue the agricultural use of the property, with enough flexibility to allow the property use to evolve with time while remaining g within the constraints of the conservation easement.

 

[Mark Reynolds]

With a conservation easement you have a new co-owner of your land. Every easement is as unique as the property it is being placed upon. Outline potential future building envelopes, utilities corridors, roads, fields, creek crossings, ponds, etc. Once you have this new co-owner it gets virtually impossible to change anything or construct new infrastructure that was not in the easement agreement. For example I know of a ranch that put the land in an easement. They decided they would really like another hay shed just outside the headquarters building envelope and wanted to trade an equal amount of land on the other side of the headquarters. No go. Couldn't get it worked out with the easement owner - and this was an ag focused easement owner. Easements can be good, but need to be very careful. They are a much better deal when the next door neighbor has one that will preserve the view from your own ranch and you can leave your land unencumbered.

My understanding is that to be the "owner" or "co-owner" of the land, that would mean that this person or entity would then be on the deed for the land itself. Easements to my understanding restrict/control the rights tied to the land, or ownership of the rights on the land, not the land itself. If the person/entity with the easement was now a co-owner of the property, wouldn't that make selling of the land problematic? I think I may have misinterpreted what you meant when you said co-owner of the land. "ownership" of the "land" means to me that the name is on the deed and is how I interpreted what you said. I don't think my interpretation of what you said is what you meant. For individuals that are not familiar with easements, especially form a legal standpoint, your reference to the entity/easement holder being co-owner of the land would seem to be potentially confusing.

 

[GoWyo]

The grantee of the conservation easement is not a "co-tenant". The land would sell subject to the conservation easement same as it would to a utility easement, wind turbine easement (some states may use wind leases, Wyoming uses an easement), or road easement. My point is that unlike a utility easement with a defined and usually small area, a conservation easement covers most or all of the property, so even though it is an easement and the conservation easement grantee is not a co-tenant, the fact that the conservation easement is so pervasive, it is almoat like having another owner to deal with.

 

[Mark Reynolds]

The grantee of the conservation easement is not a "co-tenant". The land would sell subject to the conservation easement same as it would to a utility easement, wind turbine easement (some states may use wind leases, Wyoming uses an easement), or road easement. My point is that unlike a utility easement with a defined and usually small area, a conservation easement covers most or all of the property, so even though it is an easement and the conservation easement grantee is not a co-tenant, the fact that the conservation easement is so pervasive, it is almoat like having another owner to deal with.

Ok, not to make this more confusing than I now already am, but now you are saying "almost" like having another owner. So.....are they or aren't they an owner of the land. "Almost" means to me that they are NOT the landowner. Also, not to annoy you, but would you define what you mean by "co-tenant". "Tenant" within the Department of Agriculture, specifically FSA, which the NRCS uses for reference, I'm going to wager to guess has a very different meaning than you are using it here. I simply don't know and am not going to speculate how you are defining it. In other words, I don't know what you are saying.

 

[GoWyo]

Ok, not to make this more confusing than I now already am, but now you are saying "almost" like having another owner. So.....are they or aren't they an owner of the land. "Almost" means to me that they are NOT the landowner. Also, not to annoy you, but would you define what you mean by "co-tenant". "Tenant" within the Department of Agriculture, specifically FSA, which the NRCS uses for reference, I'm going to wager to guess has a very different meaning than you are using it here. I simply don't know and am not going to speculate how you are defining it. In other words, I don't know what you are saying.

I apologize. Sometimes I get ahead of myself. There are several types of present interests in real property. If you receive a deed you hold the land in "fee simple.". If you have all of the interests in the land, including the subsurface or mineral estate and there are no other interests, you hold the land in "fee simple absolute." If you and your wife own land in fee simple, as husband and wife, then you and she are co-tenants, specifically "tenants by the entirety". If you and your sibling own land you could be "joint tenants with right of survivorship" where the last one living gets it all. You and your sibling could also be "tenants in common" which means that each of your separate undivided interests in the land can be passed to your heirs or devisees under your will rather than by right of survivorship. These types of interests are what I was referring to as "co-tenants". A conservation easement is a "servitude" on the land. Your right to develop the land is severed from the rest of your ownership. A conservation easement covers the land like a blanket and affects a huge part of the ownership interest in the land such that it is almost like having a "co-tenant" even though the conservation easement owner is not an actual co-tenant with a present possessory interest in the land.

 

[mayesfarm]

It is crucial to make sure that what is granted and the rights reserved to the grantor allow the grantor and their heirs to continue the agricultural use of the property, with enough flexibility to allow the property use to evolve with time while remaining g within the constraints of the conservation easement.

GoWyo, this is stellar advice. After reviving this thread, I have been combing through resources and studying like it was my last college final. I have determined that the grantor of the easement has almost unlimited power during the development of the contract to set the guidelines. This being said, I would think that there could be an amendment process and even contingencies built in for unforeseen problems or opportunities to be handled. I do not think that an easement has to exert total control over the property forever, but should be more of a "is this really a good idea?" or "there must be a reason that they put this in here back in '23", moment for the owner at the time.

I haven't run across anything yet that has anything like this in it, but is it possible to form an "easement trust" to privately oversee the easement? Be the enforcer if you will. This could be like a board of directors that get a beef or hog, annually, for their troubles. Thank you for your input. Please continue to share it.

 

[wbvs58]

As I said is sorry extremely steep range land. The only part of this easement you could drive is the very top tower which would take a snowmobile to get to late Nov to April. The rest you would need to be on foot or horseback. It has sparse short grass that is less than knee high and an occasional sage brush. If they don't want me to do anything there that is fine. There is no way I would or could do anything there anyway.

The walls have ears Dave. You are negotiating compensation from the power company, I'd be talking it up about how valuable a piece of land it is to you and how much use you get out of it.

Ken

 

[Brute 23]

GoWyo, this is stellar advice. After reviving this thread, I have been combing through resources and studying like it was my last college final. I have determined that the grantor of the easement has almost unlimited power during the development of the contract to set the guidelines. This being said, I would think that there could be an amendment process and even contingencies built in for unforeseen problems or opportunities to be handled. I do not think that an easement has to exert total control over the property forever, but should be more of a "is this really a good idea?" or "there must be a reason that they put this in here back in '23", moment for the owner at the time.

I haven't run across anything yet that has anything like this in it, but is it possible to form an "easement trust" to privately oversee the easement? Be the enforcer if you will. This could be like a board of directors that get a beef or hog, annually, for their troubles. Thank you for your input. Please continue to share it.

There are ways to do that. You can set up a board that operates it and say in the bylaws that xamount of family members must be on the board and things like that. The baord members can draw salaries and have the ability to change the rules as they go.

I believe the Welder Wildlife Refuge is set up like that.

 

[Dave]

The walls have ears Dave. You are negotiating compensation from the power company, I'd be talking it up about how valuable a piece of land it is to you and how much use you get out of it.

Ken

Oh, believe me the lawyer has a case laid out as to the value and why they should be paying XXX amount.

One of the neighbors some how found out what they paid the Indians. This power line has to cross the Umatilla Reservation. He said if they pay him as much as they paid the Indians he doesn't care if they zig zag or build it in circles crossing his property.

 

[Brute 23]

Oh, believe me the lawyer has a case laid out as to the value and why they should be paying XXX amount.

One of the neighbors some how found out what they paid the Indians. This power line has to cross the Umatilla Reservation. He said if they pay him as much as they paid the Indians he doesn't care if they zig zag or build it in circles crossing his property.

Those companies know exactly how much to low ball you by. It's always under value by just enough to make it where if you fight it in court you won't put any thing in your pocket by the time you pay the attorney. It's there business to know exactly where the line is, like insurance companies.

 

[Dave]

Those companies know exactly how much to low ball you by. It's always under value by just enough to make it where if you fight it in court you won't put any thing in your pocket by the time you pay the attorney. It's there business to know exactly where the line is, like insurance companies.

The attorney is charging us a straight 7%. Add that up over 25+ landowners and he is going to do real well. He says they have to take us to court individually. This power line is pretty unpopular here. So who will be on the jury? Residents of this county. If he beats them in the first couple cases how will they beat to take 25 more of us to court to fight a losing case. And when compare to the cost of building on the location they choose paying the landowners is chicken feed.

 

[snakegap1]

You cannot gravel a road or put a gravel heavy use area to feed hay on grassland easements: destroys the grass.

That is only with a grassland easement. I placed half of my farm in a conversation easement around 2008 and I can build chicken houses if I want to, I can build permeable roads and barns (both of which I have done). I can plant my pastures in pine trees if I want to. I cannot sell top soil, I cannot have a motocross track. I left my house and 2 other 1 acer track out as well. I have the other 90 acers free and clear. I would consider doing the rest of it and excluding a couple of more tracks if I could get the compensation I think is fair

 

[mayesfarm]

That is only with a grassland easement. I placed half of my farm in a conversation easement around 2008 and I can build chicken houses if I want to, I can build permeable roads and barns (both of which I have done). I can plant my pastures in pine trees if I want to. I cannot sell top soil, I cannot have a motocross track. I left my house and 2 other 1 acer track out as well. I have the other 90 acers free and clear. I would consider doing the rest of it and excluding a couple of more tracks if I could get the compensation I think is fair

Are you working with NRCS or another group?

 

[snakegap1]

Are you working with NRCS or another group?

A retired NRCS individual is point person for the conversation easement. He calls and makes an appointment once a year to ensure that is is being maintained. I will have to go and look at who the conversation group is.