Stafford Ferry CE

[Nick87]

I took my young boys with me this year on a place I grew up hunting that is in my family. As we were dragging a deer out, it dawned on me that they are fifth generation to be out here and that is pretty damn cool. I've thought many times if only there was a way to freeze it in time (ie conservation easement) for future generations. My conflict with it is were not far from it being developed all the way around it in the future. It isn't a big enough property to make it the same if neighboring properties were to get developed, if that makes sense. Special or not I think it has to be a large enough piece to support itself of wildlife or whatever it is you want to save about it.

 

[Hunting Wife]

Special or not I think it has to be a large enough piece to support itself of wildlife or whatever it is you want to save about it.

Or it needs to be a piece of a larger landscape of conservation parcels cobbled together….which is where CEs fit in, next to wildlife refuges, non-profit conservation landowners, public lands, etc. That’s one of the points, with easements and every other conservation mechanism really…none of them can get the job done alone. We need all the tools we can get in the toolbox.

 

[MTGomer]

I spent the evening doing some reading on this and specifically Montana law regarding it. I understand the tax advantages of it as best a lay person can.

However, I am still not in the perpetual boat. As someone who has had to be part of the decision to sell a large property due to land rich cash poor conditions. I grew up there and loved it, I wish my kids could have been part of it as well. A lot of blood, sweat, and tears were spent there. But in the end the best decision for everyone was to sell it. If it gets developed then so be it. I am just a blip in the timeline of that land. It is not up to me to dictate how it gets used in the future. I have no idea what the world will need in the distant future. I think it arrogant of us to force our will on future generations. I’ve been burnt with this in the past. Specifically 9 pages worth of deed restrictions from an over zealous previous owner. One who was so worried about development that he made impossible to do much anything on the property. Details down to what kind of animals you could own. To the point it’s all recorded and no one pays attention to it. Folks just go on living life and the rules are ignored by the new families that live there. But it takes one neighbor to complain and file suit and that whole thing will be a legal mess. That experience has shown me that it’s not for us to decide what happens for eternity here on earth when we are gone.

An easement being perpetual is nothing out of the ordinary.
There are easements appurtenant and easements in gross.
Exclusive easements and non exclusive easements.

Most easements are non exclusive appurtenant easements

Appurtenant means that the encumbrance created by the easement “runs with the land”.

Non-exclusive means that others can hold rights on the easement premesis. An example would be an electric easement overlapping an access easement.
Or a grazing lease on a property with a CE

If you grant the power company an easement, your neighbor an access easement, etc it’s perpetual

 

[Nick87]

Or it needs to be a piece of a larger landscape of conservation parcels cobbled together….which is where CEs fit in, next to wildlife refuges, non-profit conservation landowners, public lands, etc. That’s one of the points, with easements and every other conservation mechanism really…none of them can get the job done alone. We need all the tools we can get in the toolbox.

It's interesting you say that the biggest adjoining piece is supposedly being purchased by the county forest preserve (usually they turn it into a nature park of sorts). All of this is null however since the controlling interests have been chomping at the bit to sell for decades. I would imagine there are some decent incentives for CE when it comes to tax break?

 

[Hunting Wife]

It's interesting you say that the biggest adjoining piece is supposedly being purchased by the county forest preserve (usually they turn it into a nature park of sorts). All of this is null however since the co trolling interests have been chomping at the bit to sell for decades. I woukd imagine there are some decent incentives for CE when it comes to tax break?

@Big Fin described some of those in earlier posts I think?

 

[Nick87]

@Big Fin described some of those in earlier posts I think?

Thank you.

 

[Irrelevant]

Perpetual easements are actually not all that perpetual, especially on the Conservation front, it requires that someone inspect and enforce the easement. Which isn't free and is often overlooked. When I was president of our local rod and gun club, we had a developer inquire about our ability to hold a conservation easement that was being required as mitigation for their proposed development. We were likely one of only a couple of groups that would be keeping tabs and might sue to enforce it. But I declined the offer, as our financial future isn't great and isn't improving. The easement was too important to have a failed group be responsible for enforcing it.

Not only that, but the two parties involved can always rescind a perpetual easement. Utilities do this all the time. Heck even ROW can be vacated. Structures are the most permanent of changes, so few are ever demolished.

Just think of the permanence of development.

Those poor descendants have been denied all kinds of rights.

 

[Big Fin]

Perpetual easements are actually not all that perpetual, especially on the Conservation front, it requires that someone inspect and enforce the easement. Which isn't free and is often overlooked.

Correct. Which for a Qualified Conservation Easement is the job of the non-profit Land Trust to whom is was donated.

For a sold/bought easement, it is the job of the buyer to do the enforcement. In the cases of Conservation Easements, it is usually a government agency, possibly a Land Trust.

Not only that, but the two parties involved can always rescind a perpetual easement. Utilities do this all the time. Heck even ROW can be vacated. Structures are the most permanent of changes, so few are ever demolished.

For some easements and Right of Ways, Yes. So long as both parties to the easement agree, an easement (other than a qualified CE) can be amended, vacated, or rescinded.

Yet, for a qualified Conservation Easement that qualified under IRC 170(b), the answer is generally No. What we are talking about in this perpetuity discussion are CEs under 170(b) that have the requirement of perpetual, irrevocable, and non-alterable, among other requirements.

There is an exception that if the purpose of the easement is no longer valid, some state laws allow for termination of an easement according to some very strict rules. And if done, there is a huge headache that often requires a "recapture" of any tax benefits. It would also eliminate the estate tax benefits most are seeking. I've never heard of a qualified CE being terminated. I have seen them amended to clarify the terms of where and what size of structure is allowed. It can be amended to become more restrictive, but not less restrictive.

 

[Big Fin]

A rapidly emerging use for conservation easements in the Rockies has been to protect migration corridors. Most of the work being done to protect migration corridors is being done with CEs. Those are becoming the most cost-effective tool for conserving these critical tracts of land without having to come up with the millions and millions of dollars that would be needed to purchase the same land.

 

[Irrelevant]

Correct. Which for a Qualified Conservation Easement is the job of the non-profit Land Trust to whom is was donated.

For a sold/bought easement, it is the job of the buyer to do the enforcement. In the cases of Conservation Easements, it is usually a government agency, possibly a Land Trust.


For some easements and Right of Ways, Yes. So long as both parties to the easement agree, an easement (other than a qualified CE) can be amended, vacated, or rescinded.

Yet, for a qualified Conservation Easement that qualified under IRC 170(b), the answer is generally No. What we are talking about in this perpetuity discussion are CEs under 170(b) that have the requirement of perpetual, irrevocable, and non-alterable, among other requirements.

There is an exception that if the purpose of the easement is no longer valid, some state laws allow for termination of an easement according to some very strict rules. And if done, there is a huge headache that often requires a "recapture" of any tax benefits. It would also eliminate the estate tax benefits most are seeking. I've never heard of a qualified CE being terminated. I have seen them amended to clarify the terms of where and what size of structure is allowed. It can be amended to become more restrictive, but not less restrictive.

learned something new today. thanks Randy

 

[Addicting]

Those statements actually support the value of a perpetual easement, with whatever the provisions encumbered by the "someones" who are part of the decision. Even a perpetual CE may provide some subdivision of tracts, depending. You have good reason for strong feelings about that property, as well as regret that it's gone from your family.

Consider that if you were the one person who expended "a lot of blood, sweat, and tears" and personal income to acquire that property, would you not want to have all the rights afforded by law in deciding what happens with the property ... today, tomorrow, next year ... and after you're gone?!!!

While selling was a hardship and it pained me to go by there for years, it was for the best. It afforded me the money to make a new place mine. My kids helped and it has been rewarding. We have made new friendships and had some pretty great experiences here. We never would have had them had we stayed and absorbed that debt. After, I’m gone my kids can choose for themselves what their path will be.

 

[Big Fin]

So if you are wondering where this stuff is coming from, here's the language from Page 13 of the Montana Republican Platform.

We oppose publicly funded subsidies for conservation easements, and in-perpetuity time frame durations.

The Governor has been told by some in his party that if he continues to support perpetual easements, as he did this week with the Green Mountain easement vote, they intend to bring forth a bill that prohibits any/all Conservation Easements.

I say bring it on. I hope the Governor will call their bluff.

That is such a fringe position that the mainstream Republican voter is going to tell them to stick it in their ass. In addition, it would be fun to see Austin Knudsen and his cronies try to defend the Constitutionality of such.

This is not a fight that fringe group is going to win. I'm looking forward to that bill and it's hearing, if they have the balls (stupidity) to bring it forward.

 

[Straight Arrow]

While selling was a hardship and it pained me to go by there for years, it was for the best. It afforded me the money to make a new place mine. My kids helped and it has been rewarding. We have made new friendships and had some pretty great experiences here. We never would have had them had we stayed and absorbed that debt. After, I’m gone my kids can choose for themselves what their path will be.

Thank-you for the personal and understandable response. You obviously made the right decision for your family and yourself.

In the case of a Montana ranch establishing a CE, often it is because it will bring enough capital to comfortably continue the ranching business and supporting the land. Often it is because of an interest in collaborating with FWP in wildlife management and also allowing hunting access of some form in order to perpetuate the great Montana hunting legacy which their family has enjoyed for generations.

 

[Fire_9]

Sounds like the county commissioners have gotten enough feedback that they are agreeing to not hold this up. They’re supposed to send out a press release about it on the 26th but we shall see

 

[Forkyfinder]

Sounds like the county commissioners have gotten enough feedback that they are agreeing to not hold this up. They’re supposed to send out a press release about it on the 26th but we shall see

Glad some pressure changed their mind

 

[Fire_9]

Glad some pressure changed their mind

We’ll see if they actually follow through with it

 

[Beignet]

Sounds like the county commissioners have gotten enough feedback that they are agreeing to not hold this up. They’re supposed to send out a press release about it on the 26th but we shall see

That’s welcome news. Hope it works out and that the legislature gets the message.

 

[Forkyfinder]

That’s welcome news. Hope it works out and that the legislature gets the message.

Theyll only get the message if it shows up in Helena, their calls, and emails

 

[Schaaf]

Sounds like the county commissioners have gotten enough feedback that they are agreeing to not hold this up. They’re supposed to send out a press release about it on the 26th but we shall see

Good news, now we get to find out the next excuse.

 

[Beignet]

Theyll only get the message if it shows up in Helena, their calls, and emails

I live in an area of the state where I’ve never had to write my legislator about wildlife or access issues, if you catch my drift.

Rest of the legislature likely DGAF about my opinion since I’m not a constituent. Hope folks elsewhere take the time to write in.