Conservation Easement Considerations

Updated: Jul 23, 2020

By Sarah Everhart

Brown horse eating grass (Photo Credit Edwin Remsberg).
Brown horse eating grass (Photo Credit Edwin Remsberg).

At this year’s Maryland State Bar Association Conference the Agriculture Law Section of the Bar co-hosted a panel discussion with the Environment and Energy Section pertaining to legal considerations for conservation easements. One of the panelists was Nancy Russell-Forrester, Esq. Nancy represents the Maryland Agricultural Land Preservation Foundation (MALPF) program and she put together the following checklist for attorneys advising clients considering a conservation easement. I am posting the checklist because it is helpful for both attorneys and landowners considering a conservation easement.

MARYLAND AGRICULTURAL LAND PRESERVATION FOUNDATION (“MALPF”) PROGRAM Considerations for Attorneys Representing Landowners Statutory Authority: Md. Code Ann., Agric. § 2-501 et seq. Regulations: COMAR 15.15.01 et seq.

I. Conservation Easements in General– What are they? A. Bundle of Covenants to restrict use of land, including restrictions on 1. subdivision and/or development, 2. commercial, industrial, agricultural, or residential use or activity, 3. open space maintenance, and/or 4. type-specific conservation objectives (i.e.; agricultural land, plant or animal habitat, stream buffer, forests)

B. Authorized in Maryland under Md. Code Ann., Real Prop. § 2-118

C. Easement document is recorded among the Land Records, the Easement “runs with the land” and is usually perpetual

D. Can be donated or sold by a landowner to an Easement “holder”.

E. Each Easement program has its own processes for purchasing or accepting donation of an easement – consult with the specific program for details

II. Considerations Prior to Applying to Sell an Easement to the MALPF program A. What are the landowner’s goals relative to the farm into the future? 1. Does the landowner have children who desire to live on the farm? -consider withholding land for building lots, but keep in mind effect on development rights then available to sell 2. How would the landowner use the proceeds from the sale of an easement? -ex.: like kind exchange, capital improvements, pay down debt, cash for estate

planning 3. Does the landowner want to be able to subdivide the farm for the next generation? a. Subdivision is not a right. b. Foundation’s regulations provide a process to subdivide easement properties for agricultural purposes only c. Multiple parcels are considered to be one tract un