Farmland protection has incredible potential to shift power and wealth, and to create land access opportunities for farmers. It has been the focus of our work at Young Farmers for many years. But it is also complex. Below, we break down some commonly-used terms.
To learn more about farmland protection, check out our Finding Farmland guide, which provides an overview of what land trusts are, how they might be able to help you as a farmer, and how to work with them.
This glossary covers: (1) Types of land trusts; (2) Easements and general concepts; (3) Tools for protecting farmer ownership and affordability; and (4) Other tools for land access.
Types of Land Trusts
Non-profit 501(c)(3) organizations, often started by community members to protect specific resources, such as wildlife habitat, farmland, water quality, viewsheds, or habitat corridors, that are at risk from development or damage. They range in size and capacity from all-volunteer, local groups to national organizations with offices in multiple states. Land trusts protect resources by purchasing property outright or by holding a conservation easement on it.
Types of land trusts:
Conservation land trusts purchase easements in order to protect natural habitat, land for recreation, open space (including farmland and forestland), and historically important areas. Conservation land trusts may focus specifically on a certain resource, geographical area, or exist solely to carry out a single project. Since farmland is considered a conservation value by the I.R.S., all conservation land trusts have the ability to take on agriculture-related projects, although not all may include this work in their mission.
Agricultural land trusts have a particular focus on protecting our nation’s working landscape. These land trusts work with farmers and ranchers to keep farmland free from development and available for agricultural use. Some agricultural land trusts go above and beyond the function of holding property or easements—providing workshops, holding events, and helping connect farmers with available land.
Community land trusts were first developed to address affordable housing issues but have been adopted to tackle the issue of affordable farmland as well. Community land trusts own the land and lease it to farmers with a 99-year renewable lease while the farmer owns the infrastructure and improvements. This allows the farmer to build equity while enjoying secure land access. These arrangements typically utilize formulas to determine the resale value of the property improvements in a way that compensates the seller while keeping the farm affordable for future generations.
Water trusts are a specific type of conservation trust that exist primarily in the Western United States. Water trusts work with farmers and ranchers along with municipalities and other partners to buy or lease water rights with the goal of increasing stream flow and protecting wildlife habitat, especially for fish. In addition, they may help invest in on-farm infrastructure that makes water use more efficient. Working with a water trust may provide a revenue source to help finance land purchase, business operation, or land transfer. Like any land trust, the water trust may have priority watersheds and streams where it focuses its work. Trout Unlimited or the National Fish and Wildlife Foundation may be potential partners in your area.
Easements & General Concepts
Voluntary, legal agreements between a landowner and a public agency or qualified conservation organization in which the landowner sells or donates a portion of their property rights with the goal of protecting conservation values. Common rights that are extinguished by easements include the right to subdivide and the right to develop the land. Landowners can either sell or donate the rights associated with a conservation easement in exchange for monetary compensation or tax breaks. An individual can sell or donate a conservation easement to a local land trust, national conservation organization, county or state open space program, purchase of development rights (PDR) program (such as the federal program), or state wildlife or natural resources agency. Transactions can involve a single organization or occur through partnerships between different organizations and agencies. Note: conservation easements are different than access easements, which are a common feature in deeds and on property maps. Access easements indicate a pre-existing right-of-way or other reserved access right on the land.
Agricultural Conservation Easement
A conservation easement that is explicitly designed to keep productive land available for farming and to protect the ability of farmers to work the land while protecting its conservation values.
Cultural Access Easement or Cultural Conservation Easement
This type of easement has an emphasis on protecting the cultural resources on the land and is being used to create access for Indigenous people to their to traditional lands for hunting, ceremony, and stewardship. Read more about this tool and the intersection of land conservation and Indigenous land loss here.
Conservation easements do not have to cover the entire property. Often, a building envelope is excluded from the easement or a floating building zone is granted, giving the landowner a certain number of square feet in which they can build. The size of the envelope is based on anticipated future structures, total farm size, and farm type. A typical exclusion is 2 to 10 acres.
You do not give up ownership of the land when you sell or donate a conservation easement.
Conservation easements run with the land, which means they become part of the chain of title and stay in effect even as ownership of the land transfers. Land under a conservation easement can be sold, mortgaged, and passed on to future generations. In the event of a foreclosure, the conservation easement will remain in effect.
Many conservation easements contain an amendment provision that allows changes if they are consistent with the purpose of the easement, but amendments should be considered a last resort. Further restrictions (either additional acreage or more land use controls) can be added to the easement at a later time, but to get restrictions or land removed from the easement is extremely challenging. If the purpose of the easement has become impossible or impractical, it is possible for the holder of the easement (the land trust) to ask a court for modification or termination of the easement, called a cy pres ruling. In this ruling, the court will honor the original intent of the easement as closely as possible. There is no guarantee, however, that a court will allow for easement modification.
A land trust staff member will typically visit the property once a year to make sure the easement is being upheld and to build a relationship with the landowner. The staff person will call before they come to the farm and may encourage the farmer to walk the property with them. If any violations of easement terms are discovered, the land trust will work with the farmer to resolve them.
Protecting Farmer Ownership & Farmland Affordability
Below are some examples of the tools that land trusts are using to lower the purchase price of conserved properties and ensure that farms stay affordable to farmers.
Working Farm Easement
An agricultural conservation easement that includes a farmer ownership and affordability provision designed to keep farmland at its agricultural use value. These easements cost more than traditional easements initially, and therefore provide more cash value to the landowner—as much as sixty to
seventy percent of a property’s fair market value. Working farm easements have been shown to deter non-farmer buyers and keep conserved land in agriculture, although not necessarily affordable to beginning farmers. The federal agricultural conservation easement funding program, ACEP-ALE, will fund working farm easements.
Farmer Ownership and Affordability Provisions
Voluntary language included in, or added as an addendum to, an agricultural conservation easement that is designed to ensure that protected farmland is affordable to qualified farmers and remains in farmer ownership. OPAVs and preemptive purchase rights are an example of this type of provision.
Agricultural Use Value
This refers to the price that a farmer would pay for the land to use it for agriculture, rather than the “highest and best use price,” which is often based on development potential.
A person who meets the qualifications required to purchase land protected by a farmer ownership and affordability provision. Qualified farmer definitions are generally determined by the easement holder, and typically include requirements for farming income and experience that indicate serious intention and capability.
Option to Purchase at Agricultural Value / Preemptive Purchase Right
An example of language used in a working farm easement, OPAVs or Preemptive Purchase Rights (as they are called in New York) are voluntary legal provisions included in, or added to, an agricultural conservation easement that is designed to ensure that protected land remains affordable to, and owned by, farmers. Typical OPAV language requires that when the farm goes up for sale, if it is not being sold to a family member or qualified farmer (often defined based on the percentage of income earned from farming), the land trust can step in, buy the property, and resell it to a farmer at its agricultural use value (or assign the sale of the property directly to the farmer). In essence, OPAVs recognize the agricultural use value of protected land, establish criteria for qualified farmer buyers, and establish the preferential right of the easements holder or its assignee to purchase protected farmland at its agricultural use value in the event that the landowner intends to sell to a non-farming buyer.
A typical conservation easement is restrictive—it takes away property rights. An easement with affirmative farming language adds on requirements in addition to extinguishing certain rights. Affirmative language can be used to require that the conserved property always be in active agricultural use or farmed organically, among other things. It is the responsibility of the organization that holds the easement to enforce this measure. The Massachusetts Agricultural Preservation Restriction (APR) Program incorporates this language into all of its easements.
Other Tools for Land Access
A ground lease separates ownership of the land from ownership of the infrastructure on a farm property. A land trust or non-profit organization can hold title to the land while a farmer receives a secure, long-term lease on the ground and owns the farm infrastructure. For resources on ground leases, visit equitytrust.org.
Through buy-protect-sell programs, land trusts can purchase a farm that is vulnerable to development, protect it with a conservation easement (ideally with an OPAV or other affordability provisions), and resell it to a beginning farmer at its new and more affordable value. The land trust finances the purchase of unconserved land so that a farmer-buyer only has to finance the purchase of the conserved and more affordable land.As of the 2018 farm bill, the federal agricultural conservation easement funding program, ACEP-ALE, will fund buy-protect-sell projects.
For land trusts with the capacity to do so, lease-to-own models offer a realistic pathway to ownership for farmers. For example, a land trust might purchase and conserve a property, and then offer a farmer a fve-to-seven year lease with the contractual option to purchase the farm at its conserved value.