Dean Saunders sits down to discuss negotiating Conservation Easements.
Negotiating conservation easements can be tricky and will have a permanent impact on the owner of private land. Dean Saunders, ALC, CCIM, is a real estate broker and conservation easement expert. He sat down with us to explain how to negotiate conservation easements.
Saunders used an example scenario in conservation easement negotiation. These negotiations are an important part of coming to an agreement between a landowner and a land trust or government agency at the state and federal level.
He described working with a hypothetical landowner of a 5000-acre tract of ranch land, which the state has an interest in buying. The property might have some endangered species on it or some endangered, imperiled wildlife habitat, which is very likely. It may be next to other conservation properties or open space. If so, the property provides a buffer to the conserved land.
These types of ranchland, timberland, or agricultural land are perfect candidates for conservation easements.
But the landowner he has needs to run his operation. The farmer needs to be able to conduct his cattle operations or farming operations, whatever he's doing on the property, somewhat unfettered. So, Saunders said, negotiations determine how those needs are met.
Saunders described more considerations in conservation easement negotiations.
For instance, a rancher in his 50s or 60s who has three children is likely starting to think long term about what he should do with the ranch. One option is to split the property up among the heirs. But, what if each child would like to have a house on the ranch? These types of plans must be considered upfront in the negotiations.
Saunders described most of the easements as “status quo easements,” which allow the property to be maintained without much change. Without necessarily developing some native habitats, the owner may have native habitat on the ranch that could be converted to pastureland. The landowner may not want to convert it, or it may not be able to be restored. Some easements allow the conversion of some of those into pasture land. But typically, that's one of those issues that you need to discuss in negotiations related to the goals and objectives of the easement.
Saunders also noted that conservation easements are established in perpetuity. A conservation easement is a legal document binding on the landowner, the heirs, and future owners.
At the time of the conservation easement, a baseline documentation report provides a snapshot of the property. The document identifies what is on the property, including where roads are, where pastures are, where timberland or native land is, any structures, cow pen, etc.
A landowner needs to understand and agree with the final assessment because it is “the Bible” identifying all of the property’s aspects. It functions as a reference in the future if there are any questions about the easement, including whether or not the conservation easement has been infringed upon.
Saunders often answers other questions about existing conservation easements: Can I change it? Can I make use of it? Is there flexibility? Can I get out of it?
He notes that a landowner even remotely thinking about trying to get out a conservation easement in the future should probably not proceed.
However, Saunders said situations arise that a landowner did not anticipate when the baseline documentation was created. He notes that it is possible to amend a conservation easement. Two parties agreed to the terms of the easement and could agree to amend it as well, but new negotiations are part of the process.