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Frequently Asked Questions
LIABILITY
I can't ride where I used to ride because the land owner doesn't want the liability. Is there anything I can do?
First and foremost, do not trespass on someone else's private property. Aside from aggravating the landowner, you're putting yourself at risk of being arrested for criminal trespass. You also run the risk of the landowner bringing a civil case against you seeking money damages arising from your trespass on the land (where allowed by law).
In today's litigious society, the landowner's concerns are understandable. But if the landowner is willing to speak with you, maybe you can try to hear his or her concerns and find ways to overcome those concerns to his or her satisfaction.
For example, if the landowner is concerned about liability, here are some options you can discuss:
- Maybe you can agree to sign a liability waiver/release (where allowed by law) that offers the landowner as much protection as the law will allow him.
- You can show the landowner some of the laws in your state that limit certain equestrian-related liabilities, such as the Equine Activity Liability Acts or the Recreational Land Use Act (if your state has either one), and that might make the landowner feel comfortable with your activity.
- Possibly, you can show proof of your health insurance that will pay the cost of any medical bills you might incur (however, in recent years, medical providers have shown a greater willingness to seek recourse against stables and horse providers that are blamed for causing accidents).
- You can sign an indemnity agreement (where allowed by law) in which you agree to protect and hold harmless the landowner if he or she is sued for any wrongful acts that you are accused of committing while using the land.
- If you have liability insurance that applies to the actions of your horse off-premises (such as a policy of Personal Horse Owner's Liability Insurance), you can show the landowner proof of that insurance, as well.
- You can establish a mutual agreement, confirmed in writing, regarding your use of the land, covering matters such as when you can enter the property, off-limits areas, and restrictions on what you can or cannot do while there.
Ultimately, though, the decision of whether to allow you to enter the land rests with the landowner. Sometimes, nothing you say or do will make him or her willing to allow you to use the land. If that is the case, accept the decision graciously and proceed elsewhere.
And if the landowner is willing to give you access, show your appreciation. A note of thanks, a card during the holidays, a friendly gesture of a bouquet, plant, cookies, or a framed photo you took of a beautiful spot on the property will let the landowner know how much you genuinely appreciate the use of the land. And these gestures, combined with your respectful use of the land, are likely to keep you coming back.
Julie I. Fershtman, Attorney at Law
of Counsel to Zausmer, Kaufman, August Caldwell & Tayler, P.C.
TRAILS
The trail I've always ridden has been closed. How can that happen?
If the trail in question is on private land, it can be for a variety of reasons:
The property was sold and the new owner does not want horseback riding on their land.
A rider, or several riders, did not follow the rules for riding on the land.
The land is going to be put up for sale and the current owner does not want "encumberances" to the sale.
If the trail in question is on public land, there are a variety of reasons, and possible actions on your part to change the decision, as well:
The land I ride on (or the barn I keep my horse at) is being sold for development. What can I do to stop it?
Contact ELCR's office. There is usually something that can be done. Some examples are, briefly:
1. If the land is not yet zoned for the desired development, work with your local zoning officials to see what open spaces and/or trails can be included in the re-zoned plat. When you contact ELCR, please have details such as total acreage and what kind of development is planned. A group of people seeking the same change is more effective than a single person. Gather as many people as you can to support your request.
2. If your state, county, or local area has a Purchase of Development Rights program, get the details from the appropriate government office.
What is a Purchase of Development Rights (PDR) program? Consider the ownership of land to be the possession of a "bundle of rights" associated with that land. These rights include the right to possess, use, modify, develop, lease, or sell the land. Mineral rights constitute one of the items in the bundle with which most people are aware. If the mineral rights have been separated from the remaining items in the bundle, the owner is prohibited from drilling for oil or from mining the land. The right to develop a piece of land for residential, commercial, or industrial purposes is also a right within the bundle. The purchase of development rights involves the sale of that right while leaving all the remaining rights as before.
PDR is a voluntary program, where a land trust or some other agency usually linked to local government, makes an offer to a landowner to buy the development rights on the parcel. The landowner is free to turn down the offer, or to try to negotiate a higher price. Once an agreement is made, a permanent deed restriction is placed on the property which restricts the type of activities that may take place on the land in perpetuity. In this way, a legally binding guarantee is achieved to ensure that the parcel will remain agricultural, or as open (green) space, forever. This is because the agency involved retires the development rights upon purchase. The deed restriction may also be referred to as a conservation easement, or, since most PDR programs are designed to preserve agricultural use, an agricultural conservation easement. As a result, PDR programs are occasionally called PACE programs (Purchase Of Agricultural Conservation Easements).
3. Work with your local land trust. The U.S. Department of Agriculture's Natural Resources Conservation Service reports that between 1997 and 2001, 2.2 million acres were lost to development each year (2001 Annual Natural Resources Inventory). The Land Trust Alliance's National Land Trust Census reports that from 2000 to 2005, local and state land trusts conserved open space at a rate of over 1,000,000 acres per year.
Many of the nation's land trusts were formed to address this problem - conserving our precious landscapes before they are lost forever to development. However, whether to develop or conserve a particular parcel of land is a complex decision that depends on many criteria and local concerns. Visit www.lta.org for further information regarding working with land trusts, or contact ELCR at Info@ELCR.org for further assistance.
LAND TRUSTS
What is a Land Trust?
A land trust is a nonprofit organization that, as all or part of its mission, actively works to conserve land by undertaking or assisting in land or conservation easement acquisition, or by its stewardship of such land or easements.
Are land trusts government agencies?
No, they are independent, entrepreneurial organizations that work with landowners who are interested in protecting open space. But land trusts often work cooperatively with government agencies by acquiring or managing land, researching open space needs and priorities, or assisting in the development of open space plans.
So, what are the advantages of working with a land trust?
Land trusts are very closely tied to the communities in which they operate. Moreover, land trusts' nonprofit tax status brings them a variety of tax benefits. Donations of land, conservation easements or money may qualify you for income or gift tax savings. Moreover, because they are private organizations, land trusts can be more flexible and creative than public agencies - and can act more quickly - in saving land.
UPDATE: In August 2006 legislation was enacted increasing the tax benefit for donations of conservation easements. This legislation will be in place until December 31, 2007. Learn more!
What does a land trust do?
Local and regional land trusts, organized as charitable organizations under federal tax laws, are directly involved in conserving land for its natural, recreational, scenic, historical and productive values. Land trusts can purchase land for permanent protection, or they may use one of several other methods: accept donations of land or the funds to purchase land, accept a bequest, or accept the donation of a conservation easement, which permanently limits the type and scope of development that can take place on the land. In some instances, land trusts also purchase conservation easements.
People are tremendously concerned about the unmitigated loss of open space in their own communities. They see subdivisions supplanting the open spaces where they once walked and hiked, and they want to know how they can gain the power to save the green spaces that make their communities unique. So they turn to land trusts as the local entities that have been set up to conserve land.
How to I find a land trust that can help me with my land concerns?
Click on 'Find a Land Trust' and you will be taken to map on www.lta.org. Then click on your state to see a listing of LTA member land trusts operating in your area. Please note that a land trust must be selective in choosing land-saving projects. Unless the land trust exercises care in choosing its projects, it may find itself stuck with a property or a conservation easement that serves little public interest, is very costly to manage, or does not really fit with the land trust's purposes. A land trust that does not carefully select its projects may open itself to public criticism, credibility problems and even legal problems.
If you do not find a land trust working in your community, please contact ELCR at Info@ELCR.org and our staff will assist you in finding a land trust that will work with you to preserve land for horses.
CONSERVATION EASEMENTS
What is a Conservation Easement?
A conservation easement (also known as a conservation restriction) is a legal agreement between a landowner and a land trust or government agency that permanently limits uses of the land in order to protect its conservation values. It allows you to continue to own and use your land and to sell it or pass it on to heirs.
People execute a conservation easement because they love their land, and want to protect their land from inappropriate development while keeping their private ownership of the property. Perhaps most important, a conservation easement can be essential for passing land on to the next generation. By removing the land's development potential, the easement lowers its market value, which in turn lowers estate tax. Whether the easement is donated during life or by will, it can make a critical difference in the heirs' ability to keep the land intact.
In the 5 years between 2000 and 2005, the amount of land protected by local and state land trusts using easements doubled to 6.2 million acres. Landowners have found that conservation easements can be flexible tools, and yet provide a permanent guarantee that the land won't ever be developed. Conservation easements are used to protect all types of land, including farm and ranchland; historical or cultural landscapes; scenic views; trails; wildlife areas; and working forests.
When you donate a conservation easement to a land trust, you give up some of the rights associated with the land. For example, you might give up the right to build additional structures, while retaining the right to grow crops. Future owners also will be bound by the easement's terms. The land trust is responsible for making sure the easement's terms are followed.
Conservation easements offer great flexibility. An easement on property containing rare wildlife habitat might prohibit any development, for example, while one on a farm might allow continued farming and the building of additional agricultural structures. An easement may apply to just a portion of the property, and need not require public access.
A landowner sometimes sells a conservation easement, but usually easements are donated. If the donation benefits the public by permanently protecting important conservation resources and meets other federal tax code requirements it can qualify as a tax-deductible charitable donation. The amount of the donation is the difference between the land's value with the easement and its value without the easement. Placing an easement on your property may or may not result in property tax savings.
UPDATE: In August 2006 legislation was enacted increasing the tax benefit for donations of conservation easements. This legislation will be in place until December 31, 2007. Learn more!
How can a conservation easement be tailored to my needs and desires?
An easement restricts development to the degree that is necessary to protect the significant conservation values of that particular property. Sometimes this totally prohibits construction, and sometimes it doesn't. Landowners and land trusts, working together, can write conservation easements that reflect both the landowner's desires and the need to protect conservation values. Easements typically permit landowners to continue such traditional uses of the land as farming and ranching.
What steps do I take to place an easement on my land?
First, contact a land trust in your community to become acquainted with the organization and the services they can provide. Discuss with the land trust what you want to accomplish, and what development rights you may want to retain. Explore with them the conservation values you want to protect on the land. For example, you may already have one home on your property and want to preserve the right to build another home. That is one provision that must be specifically written into an easement agreement. Always consult with other family members regarding an easement, and remember that you should consult with your own attorney or financial advisor regarding such a substantial decision.
How long does a conservation easement last?
Most easements "run with the land," binding the original owner and all subsequent owners to the easement's restrictions. Only gifts of perpetual easements can qualify for income and estate tax benefits. The easement is recorded at the county or town records office so that all future owners and lenders will learn about the restrictions when they obtain title reports.
What are a land trust's responsibilities regarding conservation easements?
The land trust is responsible for enforcing the restrictions that the easement document spells out. Therefore, the land trust monitors the property on a regular basis - typically once a year - to determine that the property remains in the condition prescribed by the easement document. The land trust maintains written records of these monitoring visits, which also provide the landowner a chance to keep in touch with the land trust. Many land trusts establish endowments to provide for long-term stewardship of the easements they hold.
To learn more about land trusts and conservation easements, go to www.lta.org.
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