Questions and Answers

Q: What is a Conservation Restriction?

A conservation restriction is a legal agreement between a landowner (the grantor) and a conservation organization or public agency (the grantee or holder). The fundamental purpose of a conservation restriction is to permanently protect the natural, scenic and open condition of a property by prohibiting any activities that may alter the landscape and the biological function of its component systems and species. In addition to prohibited uses and activities, a conservation restriction may also entail a proactive management strategy to better preserve the natural resources of a property. The conservation restriction separates the rights to exercise more intensive uses — such as construction, subdivision, and mining — from other rights of ownership. These “development rights” are then transferred to the grantee through the conservation restriction deed. The grantee agrees to hold, but not use, the development rights and to ensure that they are not used by anyone else; effectively, the development rights are extinguished. Conservation restrictions are granted in perpetuity and apply to the land regardless of who may own it in the future.

Q: What land qualifies for consideration by EQLT for a Conservation Restriction?

EQLT is interested in preserving the natural, historical, agricultural, and recreational character of the East Quabbin region. All lands within our region will be considered for conservation, but priority is given to lands adjacent or near already protected lands. EQLT often works in partnership with federal, state or local conservation organizations. In cases where EQLT cannot assist individual landowners, EQLT strives to help landowners make connections with other conservation organizations.

Q: How does the conservation restriction affect my property rights?

Landowners still hold title to their property and enjoy all the rights of ownership, such as the right to sell the property, lease the land, leave it to their heirs, control public access, the right to privacy, and so forth. The restriction is perpetual and runs with the land and is binding on future owners. Under the terms of a conservation restriction, the property cannot be used in a manner that significantly impairs the actual or potential use of the property as forestland or as open space land (or significantly impairs other conservation values identified in the restriction). EQLT encourages good land stewardship and the restriction provides for a “Best Management Practices” standard and general operating guidelines for forest and agricultural management. EQLT does not dictate specific management prescriptions to the landowner.

Q: On what land or portions of my land will a conservation restriction be placed?

EQLT prefers to protect the entire woodlot or farm, as the case may be. If the property includes a residence(s), farm buildings, and other structures, EQLT prefers to exclude those areas from the restriction, so that the landowner is free to exercise the rights to repair, improve, or replace existing structures on the property outside of the terms of the restriction. In some circumstances, it may make sense for the landowner to exclude some portion of the property for future house lots for family members or as a financial contingency. The location of an excluded area is determined jointly by the landowner and EQLT, and should not detract from the overall conservation objectives associated with protecting the property. Sometimes a boundary survey is required to create a new property description for the excluded area(s).

Q: How does a conservation restriction affect the local property tax paid on the property?

As a general rule the assessed value of restricted land will be based on its forest and/or agricultural value. If the property is enrolled in a current use taxation program (Ch. 61, 61A or 61B), this program is not affected by the restriction and the property taxes are likely to stay the same. If the property is not enrolled in such a program, then the property tax could be significantly lowered once the restriction is placed on the property. The local Board of Assessors determines the actual assessment. Landowners may need to file for an abatement to receive a reduced tax assessment on the restricted land.

Q: Does a conservation restriction affect state or local by-laws or zoning regulations?

No. State and local land use regulations still will apply to the property. Any zoning regulations, building codes, subdivision rules, setback requirements, and health and safety regulations still apply to property under a conservation restriction.

Q: Who obtains the appraisal to determine the value of the conservation restriction for tax purposes and how is the value determined?

A qualified appraisal is required to claim a tax deduction for a donated restriction. The landowner is responsible for securing and paying the cost of the appraisal, but EQLT is willing to assist the landowner in the process of identifying and selecting an appraiser. The value of the conservation restriction is the difference between the highest market value of the property before imposition of the restriction and the market value of the property after the restriction is in place. This is called the “before and after” approach to valuation. The “after” value typically reflects the forest, agricultural, and/or recreational value of the property.

Q: Do I need a lawyer if I want to place a conservation restriction on my property?

Yes. EQLT advises landowners to get qualified legal counsel to assist them in the decision-making process and to review legal documents. Placing a conservation restriction on your property can have significant land use, income tax, and estate planning consequences and such a decision should be made with the advice of competent legal counsel.

Q: Do I need a title report for my property?

Yes. An updated title report is a prerequisite to placing a restriction on the property, and it is important to get a title report early in the process in order to avoid complications and delays later. This is an expense that is borne by the landowner.

Q: Does a conservation restriction on my property affect my borrowing power?

Not necessarily. The property still may have significant value when encumbered by a conservation restriction. The restriction itself does not preclude use of the property as collateral for borrowing.

Q: Is a mortgage on my property affected by a conservation restriction?

Yes. Any mortgage, deed of trust, or other monetary lien on the property must be discharged prior to the restriction or subordinated to the restriction. In the case of subordination, it is advisable to talk to your lender well in advance of placing a restriction on the property to determine what, if any, requirements the lender may have. EQLT can help landowners in these discussions with their lenders.

Q: What is a Conservation Restriction Enforcement Endowment and how is the amount determined?

EQLT encourages a cash gift to the Enforcement Endowment for each conservation restriction it acquires. A conservation restriction is a perpetual obligation and responsibility for EQLT, and it is important that funds be available to ensure that EQLT has the means to fulfill the landowner’s goal of protecting the property. The endowment is a fund held in a restricted-purpose account at EQLT and is used to pay for the annual cost of monitoring the conservation restriction. The Enforcement Endowment also serves as a reserve in case extraordinary legal or other expenses are required to defend and enforce a restriction held by EQLT. Gifts to the Enforcement Endowment at EQLT typically range from $4,000 to $8,000. Complex restrictions may require additional funds. EQLT is flexible as to the manner in which Enforcement Endowments are contributed. They can be paid in installments, through a bequest, through a modest assessment if the land is sold in the future, or by donating the timber rights, or a portion of them, to EQLT.

Q: What is a Property Baseline Report?

At the time the restriction is placed on the property, a baseline documentation report is prepared with maps, photos, and other materials that document the condition of the property. The report then serves as a baseline to determine changes that occur over time.

Q: What is the monitoring process and how do I ensure my privacy is maintained?

EQLT strives to visit each of its restriction-protected properties once every year. These visits are intended to be friendly and informative, and can provide an opportunity to exchange information or to answer questions the landowner may have about the restriction or the property. Advance notice for each visit is given and the landowner is strongly encouraged to participate. The visits usually involve driving around or walking around the property, taking photographs, and filling out a questionnaire. EQLT maintains communication with the landowner by mail, phone, email and through its newsletter.

Q: I have decided I want to proceed further with a conservation restriction for my property. What are the next steps?

EQLT’s office is located at Ridge Road, P.O. Box 5, Hardwick, MA 01037. Please contact us at 413-477-8229 or [email protected]. We will set up an appointment to meet you at your property and to discuss the process for moving forward.

Rev. February 2007