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Nancy A. Mclaughlin - One of the best experts on this subject based on the ideXlab platform.
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ABA RPTE Conservation Easement Task Force Report: Recommendations Regarding Conservation Easements and Federal Tax Law
2019Co-Authors: W. William Weeks, Nancy A. Mclaughlin, Turney Berry, Jonathan G. Blattmachr, Jason E. Havens, James Slaton, Steve Swartz, Philip TabasAbstract:In October 2015, the American Bar Association’s Real Property, Trust and Estate Law (RPTE) section convened a Conservation Easement Task Force. The objective of the Task Force was to provide recommendations regarding federal tax law as it relates to conservation Easements. This Report is the culmination of the Task Force’s work. Part I of the Report is an Executive Summary of the Task Force’s recommendations. Part II provides the background necessary to understand the Task Force’s recommendations. Part III briefly sets forth the Task Force’s comments on the Tax Cuts and Jobs Act of 2017 as it relates to charitable contributions in general and conservation Easement donations in particular. In Part IV, the Task Force recommends that the Treasury publish safe harbor provisions that would be common to most conservation Easements. Part V sets forth the Task Force’s recommendations regarding amendments and discretionary consents, the inconsistent use regulations, and furthering transparency in conservation Easement administration. Part VI discusses issues surrounding valuation of conservation Easements. Part VII contains a brief comment on syndicated conservation Easement transactions. Part VIII is the Task Force response to certain proposals the Treasury Department made (most recently in 2016) to change conservation Easement law. Appendix A sets forth the “perpetuity” requirements of § 170(h) and the Treasury Regulations. Appendix B offers specific language to facilitate the preparation of key safe harbor provisions.
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Uniform Conservation Easement Act Study Committee Background Report
SSRN Electronic Journal, 2017Co-Authors: Nancy A. MclaughlinAbstract:This report was prepared by Nancy A. McLaughlin, Robert W. Swenson Professor of Law at the University of Utah S.J. Quinney College of Law, in her role as Reporter for the Uniform Law Commission's Uniform Conservation Easement Act Study Committee. The report provides an overview of the Uniform Conservation Easement Act (UCEA), which was approved by the Commission in 1981, and examines the provisions in individual state conservation Easement enabling statutes that differ from the provisions in the UCEA.
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Conservation Easement Enabling Statutes: Perspectives on Reform
Utah Environmental Law Review, 2014Co-Authors: Nancy A. Mclaughlin, Jeffrey PidotAbstract:By now, the public has invested billions of dollars in many tens of thousands of conservation Easements. With the widespread use of the conservation Easement as a land protection tool have come increasingly sophisticated and thorny issues and challenges. This Article focuses on state conservation Easement enabling statutes and related reforms. It is presented as an exchange of ideas between the two Authors who come to the table with different backgrounds but a shared commitment to, and understanding of, the importance of land conservation. The goal is to provide food for thought to landowners, land conservation professionals, policymakers, federal and state regulators, and the public when considering possible reforms.
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internal revenue code section 170 h national perpetuity standards for federally subsidized conservation Easements part 2 comparison to state law
2011Co-Authors: Nancy A. MclaughlinAbstract:This article is the second of two companion articles. The first article analyzed the requirements in Internal Revenue Code section 170(h) that a deductible conservation Easement be “granted in perpetuity” and its conservation purpose be “protected in perpetuity.” That Article concluded that section 170(h) and the Treasury Regulations should be interpreted as establishing uniform national perpetuity standards for tax-deductible conservation Easement donations. This second article surveys the over one hundred statutes extant in the fifty states and the District of Columbia that authorize the creation or acquisition of conservation Easements. This article concludes that, to be eligible for the federal subsidy under section 170(h), conservation Easement donors should be required to satisfy both federal tax law and any state enabling statute requirements relating to the transfer, release, modification, or termination of conservation Easements. This article also recommends that the IRS issue guidance regarding satisfaction of the federal perpetuity requirements to promote more efficient and equitable review, interpretation, and enforcement of federally subsidized conservation Easements.
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internal revenue code section 170 h national perpetuity standards for federally subsidized conservation Easementspart 1 the standards
2010Co-Authors: Nancy A. MclaughlinAbstract:This Article is the first of two companion articles that (i) analyze the requirements in Internal Revenue Code section 170(h) that a deductible conservation Easement be “granted in perpetuity” and its conservation purpose be “protected in perpetuity” and (ii) compare those requirements to state law provisions addressing the transfer, modification, or termination of conservation Easements. This first Article discusses the historical development of the federal charitable income tax deduction for conservation Easement donations, the legislative history of section 170(h), and the Treasury Regulations interpreting that section. It explains that section 170(h) and the Treasury Regulations contain a complex web of requirements intended to ensure that a federal subsidy is provided only with respect to conservation Easements that permanently protect unique or otherwise significant properties. Such requirements are also intended to ensure that, in the unlikely event changed conditions make continued use of the subject property for conservation or historic preservation purposes impossible or impractical and the Easement is extinguished in a state court proceeding, the holder will receive proceeds and use those proceeds to replace the lost conservation or historic values on behalf of the public.The companion article, which will be published in the Winter 2010 edition of the Real Property, Trust & Estate Law Journal, surveys the over one hundred statutes extant in the fifty states and the District of Columbia that authorize the creation or acquisition of conservation Easements. That article explains that such statutes contain widely divergent transfer, modification, and termination provisions that were not, for the most part, crafted with an eye toward complying with federal tax law perpetuity requirements. The author concludes that landowners wishing to take advantage of the federal tax incentives offered for conservation Easement donations should be required to draft their Easements and otherwise structure their donations to satisfy the perpetuity requirements imposed under federal tax law, and any additional conditions or restrictions on the transfer, modification, or termination of conservation Easements imposed under state law should also apply, and should provide an added layer of protection of the public interest and investment in such gifts.
James L Olmsted - One of the best experts on this subject based on the ideXlab platform.
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The Future of Perpetuity: Conservation Easement Concerns in the 21st Century
2011Co-Authors: James L OlmstedAbstract:This brief article provides explanatory background material on the use of conservation Easements to protect private lands and describes some of the major concerns of the land trust community regarding the use of conservation Easements in the 21st century. Among the subjects discussed are conservation Easement amendment and termination, making conservation Easement existence and location public, taking climate change into account in conservation Easements, the interaction of conservation Easements and land use and zoning, and the increased reliance on management plans to inject flexibility into conservation Easements. The article is downloaded along with the full Fall issue of the Long View, a publication of the Oregon State Bar Sustainable Future Section, which includes two other articles on conservation Easements and an article addressing Oregon's Public-Trust Doctrine.
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The Invisible Forest: Conservation Easement Databases and the End of the Clandestine Conservation of Natural Lands
Law and contemporary problems, 2011Co-Authors: James L OlmstedAbstract:I THE INVISIBLE FOREST For the purposes of this article, the phrase "invisible forest" refers to forest lands--and, for that matter, any other land types--protected by a perpetual conservation Easement, the existence and location of which are concealed from the public, whether deliberately or because of the opaque nature of the Easement process. This is not to say that conservation Easements can be completely hidden from the public. Because Easements, like other forms of deeds, must be recorded at the local land registry or recorder's office, they can never be made undiscoverable. But, despite the efforts of some states and conservation organizations to compile conservation Easement data for public consumption, there are few functional systems that comprehensively track and provide easy access to conservation Easement data. (1) After addressing the question of whether the existence, location, and other information related to conservation Easements should be concealed or disclosed to the public through databases, this article provides updates on recent, ambitious efforts to gather, organize, and make available to the public conservation Easement data on a state-by-state basis and, ultimately, national basis through the use of databases and datasets. II CONSERVATION EasementS AND LAND TRUSTS A. Conservation Easements Conservation Easements are, in many ways, remarkable legal instruments. They protect land from development; they have solid legal underpinnings; they are voluntary; they generate income or create tax deductions for landowners that grant them; and, most remarkable of all, most are intended to last forever. (2) Functionally, conservation Easements resemble privatized and individualized zoning and land use restrictions or, seen in another light, a form of privatized environmental regulation. In terms of format, conservation Easements resemble long and complex contracts. Like contracts, they are legally enforceable agreements between two or more parties (most often between a landowner and a land trust--to be defined later). Also like contracts, they typically have many exhibits and contain a great deal of boilerplate. In name, conservation Easements are Easement grants. Like grant deeds, they are recorded in the encumbered property's chain of title and show up on title reports. Also like grant deeds, they contain language in which the owner of the underlying land "grants" to another entity the rights specified in the Easement. In this sense, of splitting off certain rights from those the landowner originally possessed, conservation Easements fit nicely into the metaphor of land consisting of a bundle of rights that, like a bundle of sticks, may be broken off and transferred to another party. Unlike deeds, however, which generally convey an ownership interest, conservation Easements also convey the right of a non-landowner party to enforce restrictions against the landowner granting the conservation Easement. Although conservation Easements have deed-like qualities and fit nicely within the bundle-of-sticks metaphor, they do not fit well within the common law of property. For example, conservation Easements are granted not to adjoining landowners, like common law Easements (referred to as appurtenant Easements), but instead to non-landowner parties, whether land trusts or governmental entities. Thus, conservation Easements are "in gross," a form of Easement disfavored at common law. Also, conservation Easements are negative covenants, still another form of Easement at odds with the common law of property. To overcome the legal obstacles of the common law of Easements, states have enacted conservation Easement enabling laws, a number of which are based on the Uniform Conservation Easement Act (UCEA). (3) The UCEA has the express purpose of "sweeping away certain common law impediments which might otherwise undermine the Easement's validity" (4) and provides a template of a statutory enabling law which individual states are free to adopt as is or to modify to meet their particular needs, all with the purpose of creating a statutory basis for conservation Easements. …
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The Invisible Forest: Conservation Easement Databases and the End of the Clandestine Conservation of Natural Lands
2010Co-Authors: James L OlmstedAbstract:This article explains the history and features of the National Conservation Easement Database (NCED) that is poised to become operational and available online after May 31, 2011. By way of background, this article addresses the current lack of record keeping regarding the existence and location of conservation Easements in the United States. It is estimated that only two states have any form of mandatory recording or record keeping, and governmental recording offices and title companies have no independent means of tracking conservation Easements. While several arguments can be made for keeping the existence and location of conservation Easements confidential, more powerful arguments can be made for requiring that they be recorded and tracked in a publicly available database. Such a mandatory recording system would promote monitoring and record keeping for factors such as weather and climate changes, species populations and migrations, biodiversity, carbon sequestration capacity and many others. A public database would also prevent the creation of "orphan" conservation Easements resulting from the termination or dissolution of the nonprofit Easement holders which cannot be expected to exist in perpetuity which is the time-span for most of the conservation Easements in the United States.
W. William Weeks - One of the best experts on this subject based on the ideXlab platform.
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ABA RPTE Conservation Easement Task Force Report: Recommendations Regarding Conservation Easements and Federal Tax Law
2019Co-Authors: W. William Weeks, Nancy A. Mclaughlin, Turney Berry, Jonathan G. Blattmachr, Jason E. Havens, James Slaton, Steve Swartz, Philip TabasAbstract:In October 2015, the American Bar Association’s Real Property, Trust and Estate Law (RPTE) section convened a Conservation Easement Task Force. The objective of the Task Force was to provide recommendations regarding federal tax law as it relates to conservation Easements. This Report is the culmination of the Task Force’s work. Part I of the Report is an Executive Summary of the Task Force’s recommendations. Part II provides the background necessary to understand the Task Force’s recommendations. Part III briefly sets forth the Task Force’s comments on the Tax Cuts and Jobs Act of 2017 as it relates to charitable contributions in general and conservation Easement donations in particular. In Part IV, the Task Force recommends that the Treasury publish safe harbor provisions that would be common to most conservation Easements. Part V sets forth the Task Force’s recommendations regarding amendments and discretionary consents, the inconsistent use regulations, and furthering transparency in conservation Easement administration. Part VI discusses issues surrounding valuation of conservation Easements. Part VII contains a brief comment on syndicated conservation Easement transactions. Part VIII is the Task Force response to certain proposals the Treasury Department made (most recently in 2016) to change conservation Easement law. Appendix A sets forth the “perpetuity” requirements of § 170(h) and the Treasury Regulations. Appendix B offers specific language to facilitate the preparation of key safe harbor provisions.
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A Tradable Conservation Easement for Vulnerable Conservation Objectives
Law and contemporary problems, 2011Co-Authors: W. William WeeksAbstract:I THE ISSUE The critical conservation objectives in some conservation Easements will probably be compromised by the effects of climate change in the relatively near future. Prompted to consider that likelihood, we can similarly predict that landscape fragmentation, invasive species, and other catastrophes--anthropogenic and natural--may also seriously diminish the capacity of particular parcels of land to serve narrowly defined conservation purposes, and especially, the conservation of a particular element of biodiversity. II CONSERVATION EasementS, THE LAW, AND THE SCOPE OF THE PROBLEM A. Introduction A fair understanding of the issue and the solution proposed here requires a quick, general look at conservation Easements and the law that governs them. Although there are real-property antecedents, such as equitable servitudes, of the now widely used real-estate interests we call conservation Easements, specific recognition and authorization of conservation Easements under the state property laws that principally govern them is a relatively recent phenomenon. (1) For example, the Uniform Conservation Easement Act (UCEA), (2) a form of which has been adopted in about half the states, (3) was completed by the National Conference of Commissioners on Uniform State Laws in 1981. The UCEA defines conservation Easements as a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic, or open-space values of real property, assuring its availability for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property. The UCEA "has the relatively narrow purpose of sweeping away certain common-law impediments which might otherwise undermine the Easements' validity, particularly those held in gross.'' (5) That purpose could be and was effected with a model law comprising six short sections. UCEA-type conservation Easements can be temporary or permanent and can be purchased or donated. They can be designed to serve purposes as broad and widely diverse as the above-quoted UCEA definition suggests: from air quality to preserving buildings of architectural distinction. (6) Conservation Easements broadly intended and drafted to serve those kinds of general purposes are, as a group, unlikely to be so acutely affected by changing ecological conditions that their broad purposes will cease, over time, to be served. If no Easements were narrowly focused on the conservation of very specific conservation objectives, existing solutions in law to the occasional problem that did arise would be sufficient. Further, existing law will generally offer adequate solutions when conservation Easements are purchased or exacted. A conservation Easement purchased or exacted by a governmental agency that ceases to serve the purposes for which it was acquired may be "released, modified, terminated, or otherwise altered or affected in the same manner as other Easements,'' (7) that is, by agreement with the owner of the restricted property. Before making such changes, however, the agency must observe governing law relating to the disposition of public property, including any specific restrictions on disposing of park-type property interests acquired for the perpetual use of the public. Also the agency may be constrained by government or donor restrictions on funds used in the transaction. (8) A nongovernmental charitable organization that holds a purchased conservation Easement that has ceased to serve its intended purpose likewise has the option of seeking an agreement to terminate, but it also must consider, at least, the representations made in soliciting funds used to purchase the Easement, as well as any restrictions on such funds. …
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A Tradable Conservation Easement for Vulnerable Conservation Objectives
SSRN Electronic Journal, 2011Co-Authors: W. William WeeksAbstract:The law governing termination of donated conservation Easements generally and appropriately discourages termination. Among the requirements is a judicial finding that it is impossible or impracticable to meet the purposes of the Easement. Climate change and other large scale ecological events may render conservation Easement-restricted lands unsuitable as places to protect particular endangered species or natural communities. This article proposes changes in the law, including the federal tax law that governs deductibility of donated conservation Easements. The proposed changes would make it possible to donate a deductible conservation Easement the value of which could, upon satisfaction of certain conditions, be traded, if necessary to serve the conservation purposes the Easement was originally intended to serve.
Urs P. Kreuter - One of the best experts on this subject based on the ideXlab platform.
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factors influencing land management practices on conservation Easement protected landscapes
Society & Natural Resources, 2015Co-Authors: Dianne A. Stroman, Urs P. KreuterAbstract:The goal of this article is to investigate factors influencing conservation-oriented land management practices on land holdings with conservation Easements. We report the results of a mail survey that produced responses from 251 out of a total of 518 landowners with a permanent conservation Easement on their property. We predicted that landowner satisfaction with their Easement and good relationships between landowners and Easement holders would be positively correlated with the amount of conservation-oriented land management practices. However, we found landownership motivations to be a stronger predictor of active land management. We also found significant management differences between landowners with different Easement holders. The results of this study suggest the need for increased Easement holder capacity supporting targeted outreach with landowners; increased monitoring of ecological targets on Easement properties; promotion of landowner participation in peer-to-peer management networks; and incre...
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perpetual conservation Easements and landowners evaluating Easement knowledge satisfaction and partner organization relationships
Journal of Environmental Management, 2014Co-Authors: Dianne A. Stroman, Urs P. KreuterAbstract:Conservation Easements are being more widely used to facilitate permanent land conservation. While landowners who initially place a conservation Easement on their land are generally highly motivated to protect the conservation values of their land, changes in landownership may hinder long-term active landowner support for these Easements. Maintaining such support is critical for ensuring their effectiveness as a conservation tool. Our research reports on results from a mail survey sent to landowners in Texas who own property encumbered with perpetual conservation Easements. They were asked about their level of satisfaction concerning their conservation Easement and the relationship with their Easement holder. Additionally, landowners were asked how well they remembered and understood the terms of their conservation Easement. We also examined institutional aspects of Easement holding organizations and variables associated with landownership that affected these attitudes. Among institutional factors, frequency of contact between landowners and Easement holders and the category of agency (federal, state and local or non-governmental agency) were significant in determining level of satisfaction with the Easement and perceived relationship with the Easement holder. Landowner factors affecting these same issues included Easement grantor or successive generation landowner, gender and motivations driving landownership. We did not find any significant variables related to landowners' knowledge about their Easement. Management implications from this study suggest that Easement holders should increase staff capacity capable of providing targeted landowner technical assistance and outreach beyond compliance monitoring. Additionally, landownership motivations should be considered by Easement holders when deciding whether to accept an Easement. Finally, expressed dissatisfaction with federal governmental Easement holding institutions should be explored further.
Jacob C Brenner - One of the best experts on this subject based on the ideXlab platform.
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perpetual private land conservation the case for outdoor recreation and functional leisure
Ecology and Society, 2016Co-Authors: James R. Farmer, Michael Drescher, Stephanie L Dickinson, Jacob C Brenner, Eric KnackmuhsAbstract:As natural areas, agricultural lands, and open spaces continue to be developed at unprecedented rates, it is important for land conservation professionals to understand the individuals who might play a role in permanently protecting these lands and their ecological services. Many factors have been shown to influence land protection decisions among private owners, including land-use activities, demographic characteristics, and environmental intention and behavior. With the hypothesis that individuals already involved in land conservation programs would be candidates for permanent protection, we set out to model conservation Easement decisions within a group of participants in southern Indiana’s Classified Forest and Wildlands Program (ICFWP). We used a mailed questionnaire to survey 500 landowners, garnering 308 responses, about their interest in conservation Easements. Our results indicated significant positive relationships between interest in conservation Easements with variables representing perception of landscape change, outdoor recreation behavior as an adult, and environmental organization membership. By better understanding the ways these factors promote permanent land-use decisions, land conservation professionals can better allocate limited resources through strategic investments in targeting and outreach.
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Land use determines interest in conservation Easements among private landowners
Land Use Policy, 2013Co-Authors: Jacob C Brenner, Stephanie Lavallato, Marin Cherry, Emma HilemanAbstract:Abstract Protection of private lands through conservation Easements has garnered recent attention from scientists and conservation practitioners. Questions remain, however, about the specific characteristics and activities driving landowners’ interest in conservation Easements and their willingness to consider granting them. Resolving these questions could improve prospects for private land conservation by helping land conservation organizations identify and better understand potential Easement grantors. We conducted a survey of 513 private landowners in a peri-urban fringe area in the Finger Lakes region of upstate New York, USA. Logistic regression analysis returned seven significant predictors of landowner willingness to consider granting conservation Easements. Participation in environmental organizations, recreational land-use activities, wild food gathering, and land entitlement were the strongest factors promoting interest in conservation Easements. Long-term residency, male gender, and hunting or fishing, on the other hand, significantly decreased the likelihood of considering conservation Easements. The findings suggest that landowners most interested in to granting conservation Easements are active land users. Notably, among all the land-use activities reported, the most frequent and the most important in predicting interest in conservation Easements are those undertaken for recreational and subsistence, rather than economic, purposes. This suggests that while Easements might be appropriate for working lands, their role in reconciling land use with conservation requires a flexible definition of work.
