Negotiating conservation easements can be tricky and will have a permanent impact on landowners. 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. 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.
However, the landowner has needs in order to run his operation. The farmer needs to be able to conduct his cattle operations, farming operations, or whatever he's doing on the property. So, Saunders explained that these 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. An obstacle arises in that: “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 landowner may want to convert the native habitat on the ranch to pastureland. However, the landowner may not want to convert it or it may not be able to be restored. Some easements allow the conversion of these habitats into pasture land. 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. Conservation easements are legal documents binding on the landowner, the heirs, and all future owners.
At the conception of the conservation easement, a baseline documentation report provides a snapshot of the property. The document identifies what is on the property, where roads are, where pastures are, where timberland or native land is, along with any structures, cow pens, etc.
The landowner needs to understand and agree with the final assessment because it is “the Bible” that identifies 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 from “Can I change it?” to “Can I make use of it?” to “Is there flexibility?” and “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 does note 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.
Conservation Easement Primer
Written by Dean Saunders, ALC, CCIM
This book is written to give insight and answers to your questions about Florida conservation easements and other landowner rights.
About Dean Saunders, ALC, CCIM
As an Accredited Land Consultant (ALC) and a member of the Florida Legislature from 1992 to 1996, Dean spearheaded the action to establish the Green Swamp Land Authority. As a result of his efforts, the very first Florida state agency was created to purchase development rights from landowners. His work was instrumental in the successful passing of the law requiring Florida state agencies to purchase a specific number of conservation easements each and every year. Selling your land as a Florida conservation easement is recommended to real estate clients when the property has the qualified features, meets guidelines, and the landowner desires a way to keep the property from major development for generations to come.