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Real estate, land use and zoning attorney. I use my twenty-five years of experience and bar licenses in CA, NV, OR and WA to assist landowners and land trusts in large-scale conservation easement projects.

Book Review: “Conservation Easements: Tax and Real Estate Planning for Landowners and Advisors”

The mainstay of publications on conservation easements has long been the second edition of the “The Conservation Easement Handbook,” authored by Elizabeth Byers and Karin Marchetti Ponte and jointly published by the Land Trust Alliance and The Trust for Public Land in 2005 (the “Handbook”).  As of 2011 there is another substantial work on conservation easements worthy of note, namely “Conservation Easements: Tax and Real Estate Planning for Landowners and Advisors,” by David J. Dietrich and Christian Dietrich (“Conservation Easements”).  Conservation Easements is a publication of the Real Property Trust & Estate Law Section of the American Bar Association and as a self-described guide for landowners joins the company of “The Landowner’s Guide to Conservation Easements,” written by Steven Bick and Harry L. Haney, Jr. ( a book first published in 2001 and of much smaller scope).

For anyone seeking a complete library on conservation easements, and able to plunk down the whopping $139.95 price tag for a new copy, Conservation Easements is a must have book.  It is also arguably a book that sophisticated landowners negotiating with land trusts should own and given its technical nature and focus on complex tax issues it also has a place in the practice libraries of attorneys and tax advisors working with conservation easements.  To the extent that Conservation Easements is a tax planning guide, it is a potentially useful supplement to tax attorney Stephen Small’s widely recognized publication, “The Federal Tax Law of Conservation Easements,” a 2002 publication of the Land Trust Alliance.

While Conservation Easements is a valuable resource for conservation easement professionals, an interesting read, and even a “must have” book for some, it is hardly a replacement for the erstwhile Handbook (despite its great need for an update) as the Handbook covers far more ground in terms addressing such contextual issues as conservation easement negotiation, development, monitoring, enforcement and other practical issues.  Also, and as the authors of Conservation Easements go to pains to point out, the two works have much different intended audiences.  As stated in the title and elaborated on in the Preface, Conservation Easements is written for landowners and their legal counsel, while the Handbook’s emphasis on managing a successful conservation easement program “reveals its intended audience to be lay land trust staff persons rather than attorneys.”

Though Conservation Easements is not a substitute for the Handbook, this is not to stay that its authors don’t have a bone to pick with the Handbook.   For example, in the Preface to Conservation Easements, the authors write:

“Equipped with sample language from the Handbook, attorneys have focused in on permitted and prohibited use clauses, conservation purpose statements, inspection provisions, and dispute resolution provisions as the key areas for input and negotiation.  Concededly, these areas merit strong consideration and may have the greatest impact on the landowner over the life of the easement.  [However,] [a]ttorneys turning to the Handbook for guidance and focusing on these areas during the easement transaction process will often end up with a document that imperfectly meets the needs of their clients, especially in routine transactions.”

Given this glum assessment, it is unsurprising when the authors later note their aspiration that: “This work aims to be a first-stop resource that addresses a wide variety of topics that may arise relating to conservation easements from a legal perspective, to both supplement and move beyond the Handbook.”

Such jousting aside, Conservation Easements deserves its place in a serious conservation easement library as a carefully and thoroughly researched practitioners’ guide that at the very least provides a different perspective or “second opinion” on a number of key legal issues that arise in conservation easement negotiation, drafting and deployment.  Though not a scholarly work itself, Conservation Easements also deserves credit for noting recent topics in the scholarship of the law of conservation easements and for integrating many such topics into discussions of conservation easement practice — although in some cases this is only accomplished at the level of what is at best an initial intellectual foray.  Among these emerging and increasingly important topics are the interaction of conservation easement law and practice with charitable trust law, especially as it pertains conservation easement amendments, and the doctrine of merger.   Likewise, in the chapter entitled “Not Exclusively for Conservation Purposes” the authors grapple with complex and critical issues relating to maintaining working forests, agricultural uses and renewable energy production on eased land.

Although this review is brief, such brevity is not intended as a reflection on this important work.  Conservation Easements is a serious, thoughtful, careful and professional work.  It merits the attention of anyone working with conservation easements as legal documents and especially when such conservation easements are donated for federal tax deductions.  Despite the book’s declaration that it is a guide for landowners, it is a resource that the land trust community should take note of and not hesitate to utilize.  It is not a replacement for the Handbook, though.  To the contrary, it should serve to remind us to add to our wish lists the publication in the not too distant future of a third edition of The Conservation Easement Handbook.

Conservation Easements can be purchased at the American Bar Association website at: http://apps.americanbar.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=5430577

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One Comment on “Book Review: “Conservation Easements: Tax and Real Estate Planning for Landowners and Advisors””

  1. karin marchetti ponte August 13, 2013 at 4:25 pm #

    Very curious to see what the additional issues are that the Handbook fails to focus on, seemingly to the detriment of landowners. So… I bought it, of course. Will report back.
    Karin Marchetti Ponte, of the Handbook.

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