Legal Immortality

Beyond Saving's picture

As someone who has fairly well formed political ideals and philosophy, it is rare that a political issue comes up that I struggle with developing a cohesive and defensible position on. However, one such issue has recently come to my attention thanks to a lawsuit that my company is going to be involved in. I have passively known about conservation easements for some time, howver, I had never really had cause to put significant thought into them before now. Having studied them much more thoroughly, I have found the idea of perpetual easements very disturbing, but can't come up with a sufficient reason to oppose them.

Conservation easements are a growing trend among environmental conservation groups and have become an attractive way for the wealthy to shelter their land from estate taxes, property taxes and get a huge income tax deduction to boot. A conservation easement is an agreement between a conservation group (The Nature Conservancy www.nature.org being the largest private one) or a government agency (mostly the USDA, although many local governments have programs too) where the landowner is paid money in exchange for assigning the development rights on a piece of property to the organization. The landowner retains the right to live on and use the land and remains the legal owner of the land. In some cases, the land is actively maintained by the organization to optimize wildlife habitat, in other cases it is not. In some cases, the landowner is allowed to farm it, in other cases not. The exact terms of the agreement are between the landowner and the organization. 

Now conservation is great. You want to by 1,000 acres and agree that you will never develop that land, good for you. Two parties coming to an agreement about who has what property rights and how a particular party may or may not modify the land is absolutely none of my business whether I like what they are doing or not. It seems like a pretty clear cut political issue for me, it is your property- do what you want.

Sure, I can bitch about government money being spent to purchase these easements and the large tax benefits given in exchange for selling these easements- really, it is ridiculous how people take pieces of land that they never intended to develop anyway and just collect the government paycheck and tax deduction for agreeing not to do something that they never intended and might not even have to ability to do. Probably the most common use of these easements from landowners is to put their 100 acre+ backyards into an easement to reduce property taxes on their multi-million dollar estate. As a general rule, millionaires don't build developments in their backyards, they build them in other peoples backyards.  

But here is where I run into a problem with the whole idea, these easements are often "in perpetuity". That means that the property owner transfers the development rights of the property not only for their life, but the easement transfers with the property, so anyone who inherits, purchases or otherwise obtains the property will also be legally bound by the agreement. In theory, once a property is entered into one of these easements nothing can be built on it forever. After the land owner dies, the next person and the person after that and through a dozen owners and hundreds of years, the agreement remains in effect and cannot be nullified. So the millionaire who decides to collect the tax benefits by signing their backyard over to a conservation group is arguably giving away virtually nothing. They weren't going to develop it anyway, so why not save a few bucks and give yourself a pat on the back for being "green". Yet that decision which has very low cost at the time, can have very high costs for future generations. It is arrogant and idiotic to believe that we can possibly imagine now how pieces of land might need to be developed 100 or 200 years from now. Currently, an estimated 30-40 million acres of land in the US are under these types of easements, which is approximately the size of Georgia, and growing at a rate of a few million acres a year. That is a fairly significant amount of land that can in theory never be developed.  

It doesn't sit well with me that people can essentially dictate to future generations how land can be used even after they are long dead. They will either have to plan around conservation easements- even if doing so leads to much greater environmental destruction (imagine for example if conservation easements had blocked freeway construction and forced longer curvier freeways to travel the same distance) or they will have to break the contract, which brings about its own legal problems. What use is the rule of law if you can't count on contracts being honored? That sooner or later these easements are going to produce substantial difficulties in the future is a question of when, not if, even though I believe that the people involved have good intentions. 

That being said, everyone is consenting and voluntarily signing the contracts without coercion. Just because I believe it is a terrible idea isn't a sufficient reason to ban the practice. The landowner is agreeing and anyone who purchases the land in the future will know about the easement and have the choice to decide to purchase the land or go purchase other land. By purchasing the land, they are agreeing to the easement just like people everyday agree to utility easements when they purchase a new house. Since my default position is to allow people to make stupid contracts if they want, I can't find a reason to oppose the practice. I can't point at any specific harm caused except for a vague theoretical harm hundreds of years in the future, which is hardly sufficient cause for government interference today.

Still, it doesn't sit well with me and at some point, the law is going to be thrown out the window or our descendants are going to be cursing us for letting these easements exist. At least when the conservation movement became big in the early 1900's they purchased the land and donated to government where we can argue about whether or not we should drill, develop or sell the land to private parties and have a vote on it. 

Having the development decisions completely controlled by a handful of organizations that don't share any of the maintenance costs, taxes or expenses of the property and thus have no cost in simply owning the development rights forever is a bad idea. There is no guarantee that these organizations are going to remain benevolent, there isn't even a guarantee that conservation is going to remain their goal. Just like the land owners, the people in these organizations today will be long dead while the contracts remain in effect. For the dishonest person of the future, being in control of The Nature Conservancy and unilaterally having the power to determine which contracts can be cancelled and which can't would be potentially very profitable.  

If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X

EXC's picture

What your rational basis for

What your rational basis for supporting private land ownership in the first place?

It seems to me the only reason why the white man owns land is because he made better weapons than the red man and hense was able to wage war better. It seems to me that 'land ownership' is just welfare for the rich, old and established at everyone else's expense. The height of hypocrisy amoung conservatives that are against the government guaranteeing welfare benefits like food, shelter and health care. They're against wealth without work, except of course if you're a land owner you can just sit on your land and wait for the price go up due to it's fixed supply. How are they any different than a welfare queen? They both make their money off the government largesse.

So I think society should be able to do whatever it wants with it's natural resources. Land could be leased to private interests with conditions like environmental impact. Of couse we have to deal with the 'original sin' of land ownership in the first place. I think the government would need to compensate 'land owners' if the paid money to buy the land. But I'd like to see the end of this welfare for the rich and established. I'd prefer a society were wealth came from work and innovation not special privledge.

Taxation is the price we pay for failing to build a civilized society. The higher the tax level, the greater the failure. A centrally planned totalitarian state represents a complete defeat for the civilized world, while a totally voluntary society represents its ultimate success. --Mark Skousen

Beyond Saving's picture

EXC wrote:What your rational

EXC wrote:

What your rational basis for supporting private land ownership in the first place?

It is a sensible way to order society that leads to excess production while allowing individuals a fairly significant amount of freedom in deciding how involved they want to be with the economy at large. 

 

If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X

Vastet's picture

This is fascinating. I'd not

This is fascinating. I'd not heard of this before. I have to agree that it won't end well. I wonder just how much it'll inconvenience future generations. The sheer number of ways it could spiral into a huge problem are rather astounding.
But it seems to me that there is one easy way to end the practice and all contracts fairly quickly: End funding to the organisations with development rights. They can't be profitable if conservation is the intent. You don't get paid anything for not developing property. So putting an end to funding would put an end to those with development rights, thus nullifying the contract and returning development rights to the owner.
Government organisations are a bit tricky though. I could see the government deciding to change the departments around and deciding to develop land the government doesn't own and effectively appropriate the land for 'public' use.

Proud Canadian, Enlightened Atheist, Gaming God.

EXC's picture

Beyond Saving wrote:It is a

Beyond Saving wrote:

It is a sensible way to order society that leads to excess production while allowing individuals a fairly significant amount of freedom in deciding how involved they want to be with the economy at large. 

Then if we live in a country where "all men are created equal", shouldn't everyone be given an equal amount of land just for being born? Why is it a commodity only the rich can afford?

Instead what we have now in America is a modern plantation system. Land owners use largely illegal aliens as slave labor for farming, landscape and construction on the land. Ubanites spend a huge amount of their salaries on rent due to limited land. The rich get richer and can buy up even more natural resources. The problem is land is a fixed commodity, therefore it should not be a commodity. Land owernership is just a way for the rich to get even richer without contributing to the economy.

What good is excess production of food if people still can't afford it(40,000,000+ on food stamps)?

 

Taxation is the price we pay for failing to build a civilized society. The higher the tax level, the greater the failure. A centrally planned totalitarian state represents a complete defeat for the civilized world, while a totally voluntary society represents its ultimate success. --Mark Skousen

Beyond Saving's picture

Vastet wrote: But it seems

Vastet wrote:
But it seems to me that there is one easy way to end the practice and all contracts fairly quickly: End funding to the organisations with development rights. They can't be profitable if conservation is the intent. You don't get paid anything for not developing property. So putting an end to funding would put an end to those with development rights, thus nullifying the contract and returning development rights to the owner.

I thought something similar, but when I looked at the financials, organizations like Nature Conservancy get surprisingly little of their funds from the government. They bring in about $600 million a year and only $100 million comes from government. Once the conservation easement is in place, it doesn't cost anything to keep it and the landowner is responsible for all taxes and costs of maintanence.

The only way to really slow them down financially would be to remove their non-profit status and tax deductions for donating to them, but the political reality is that is never going to happen.

If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X

Beyond Saving's picture

EXC wrote:Beyond Saving

EXC wrote:

Beyond Saving wrote:

It is a sensible way to order society that leads to excess production while allowing individuals a fairly significant amount of freedom in deciding how involved they want to be with the economy at large. 

Then if we live in a country where "all men are created equal", shouldn't everyone be given an equal amount of land just for being born? Why is it a commodity only the rich can afford?

Obviously, people are not created equal and that isn't even close to what was meant by that statement anyway.

 

EXC wrote:

Instead what we have now in America is a modern plantation system. Land owners use largely illegal aliens as slave labor for farming, landscape and construction on the land. Ubanites spend a huge amount of their salaries on rent due to limited land. The rich get richer and can buy up even more natural resources. The problem is land is a fixed commodity, therefore it should not be a commodity. Land owernership is just a way for the rich to get even richer without contributing to the economy.

What good is excess production of food if people still can't afford it(40,000,000+ on food stamps)?

 

Do you have any comments on the topic of the thread or do you just have your usual ranting? Sure, the government should take kids and raise them just like Plato said so everyone is nice and equal, we could all sing kumbaya and dance in the streets. Now, any comments about the real world?

If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X

Vastet's picture

Beyond Saving wrote:Vastet

Beyond Saving wrote:

Vastet wrote:
But it seems to me that there is one easy way to end the practice and all contracts fairly quickly: End funding to the organisations with development rights. They can't be profitable if conservation is the intent. You don't get paid anything for not developing property. So putting an end to funding would put an end to those with development rights, thus nullifying the contract and returning development rights to the owner.

I thought something similar, but when I looked at the financials, organizations like Nature Conservancy get surprisingly little of their funds from the government. They bring in about $600 million a year and only $100 million comes from government. Once the conservation easement is in place, it doesn't cost anything to keep it and the landowner is responsible for all taxes and costs of maintanence.

The only way to really slow them down financially would be to remove their non-profit status and tax deductions for donating to them, but the political reality is that is never going to happen.

Ouch. If the tax breaks are rescinded by the government do the owners have a case for reclaiming the development rights?

Proud Canadian, Enlightened Atheist, Gaming God.

Jeffrick's picture

Just saying

                       Doesn't the legal power of "emminent Domain"  over ride any such arraingment? It does in Canada where the Crown has the last word on land useage [i.e. the government of the day].  Also easment [at least in Canada] refers to parts of your land designated for use by utillitys or government agencys', when ever they wish [with due notifications]  for such things as power lines, water & sewage lines, sidewalks & roadways.  These easments are mapped out on every valid title deed in existence in Canada.I own houses in Florida and Guyana, where easements exist on those deeds as well. In more rural areas of Ontario the word easement is substituted with 'consession' and in fact we now have several consession roads buildt through what was once privet lands. Governments can develope near these consessions, but only for government useage, so they might end up with  D.O.T. yards or an OPP station. Privet developement would be upto the owner.   

 

"Very funny Scotty; now beam down our clothes."

VEGETARIAN: Ancient Hindu word for "lousy hunter"

If man was formed from dirt, why is there still dirt?

EXC's picture

Beyond Saving wrote:Do you

Beyond Saving wrote:

Do you have any comments on the topic of the thread or do you just have your usual ranting? Sure, the government should take kids and raise them just like Plato said so everyone is nice and equal, we could all sing kumbaya and dance in the streets. Now, any comments about the real world?

It is on topic. I dispute your basic premise that land ownership is good and justifiable in the first place. This whole conflict arises because private land ownership is an irrational concept unless you want to live in a society with a huge gap between rich and poor and little environmental conservation.

To me, land ownership is about the same as slavery, claiming you can own a piece of nature is about the same as claiming you can own a person. Hopefully, rationality win win one day and people will universally realize this. Slave owners claimed slavery was good for the economy too, you know.

Does 'owning land' mean you own the plants, animals, air and water as well, or just the soil?

Why don't you defend you basic premise, instead of saying I'm off topic?

 

Taxation is the price we pay for failing to build a civilized society. The higher the tax level, the greater the failure. A centrally planned totalitarian state represents a complete defeat for the civilized world, while a totally voluntary society represents its ultimate success. --Mark Skousen

Beyond Saving's picture

EXC wrote:Beyond Saving

EXC wrote:

Beyond Saving wrote:

Do you have any comments on the topic of the thread or do you just have your usual ranting? Sure, the government should take kids and raise them just like Plato said so everyone is nice and equal, we could all sing kumbaya and dance in the streets. Now, any comments about the real world?

It is on topic. I dispute your basic premise that land ownership is good and justifiable in the first place. This whole conflict arises because private land ownership is an irrational concept unless you want to live in a society with a huge gap between rich and poor and little environmental conservation.

To me, land ownership is about the same as slavery, claiming you can own a piece of nature is about the same as claiming you can own a person. Hopefully, rationality win win one day and people will universally realize this. Slave owners claimed slavery was good for the economy too, you know.

Does 'owning land' mean you own the plants, animals, air and water as well, or just the soil?

Why don't you defend you basic premise, instead of saying I'm off topic?

 

 

My OP isn't about whether or not land ownership should exist, it doesn't even defend the concept. It is dealing with the reality that land ownership does exist and is going to for the forseeable future regardless of whether it is a great thing or a terrible thing. I have absolutely no interest in defending the concept of land ownership, I already had that conversation with you a couple of years ago and it was probably a waste of time because all you had were naked assertions and ridiculous hypotheticals.

All you have is a half-assed imagined system where resources wouldn't be owned by private individuals and it is clear that you haven't put a lot of thought into how it would work at the practical day to day level. Other systems that do seek to eliminate private ownership of resources have been proposed that have actually addressed those questions and are at least plausible (RBE for example). However, it isn't coming to the US in our lifetimes so theorizing about it is at best just laying the groundwork so some country a couple hundred years from now might be able to try it. 

I'm not interested in going down the path of hypothetical systems without land ownership. What I am interested in is other peoples opinions and thoughts about conservation easements in a system where private land ownership does exist.  

If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X

Beyond Saving's picture

Jeffrick

Jeffrick wrote:

                    Doesn't the legal power of "emminent Domain"  over ride any such arraingment? It does in Canada where the Crown has the last word on land useage [i.e. the government of the day].  
As far as I know, that has never been tested in court. Emminent domain law is a clusterfuck in the US. One day the government can take whatever it wants for almost any reason, and another day it can't.  
Jeffrick wrote:
 Also easment [at least in Canada] refers to parts of your land designated for use by utillitys or government agencys', when ever they wish [with due notifications]  for such things as power lines, water & sewage lines, sidewalks & roadways.  These easments are mapped out on every valid title deed in existence in Canada.I own houses in Florida and Guyana, where easements exist on those deeds as well. In more rural areas of Ontario the word easement is substituted with 'consession' and in fact we now have several consession roads buildt through what was once privet lands. Governments can develope near these consessions, but only for government useage, so they might end up with  D.O.T. yards or an OPP station. Privet developement would be upto the owner. 

Easement is a general word that applies to any agreement where the landowner legally grants someone the power to do something that would otherwise be reserved to the landowner. Owning a piece of land can be described as a series of rights that ownership gives you. You can build something, occupy the property, travel across the property, grant permission or remove permission for others to do those things etc. An easement is when you grant one or more of those usual ownership rights to another entity. Utilities are the most common easement, the utility basically owns the right to build, repair and maintain certain infrastructure on the property and the landowner has given up the ownership right of denying permission. It is also fairly common for someone to own a travel easement across anothers property, such as a driveway that goes across land that is technically owned by another person, but the easement grants the easement owner the right to travel along the driveway without permission. Conservation easements take it a step further by whollly granting the right to develop the property to a conservation organization. 

I did a quick google search and apparently conservation easements do exist in Canada. http://www.environment.gov.sk.ca/Default.aspx?DN=e2f08f2b-1b48-4f7a-8f86-90d60d665c2b but I don't know if they are as popular or common as they are here. 

If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X

EXC's picture

Beyond Saving wrote:All you

Beyond Saving wrote:

All you have is a half-assed imagined system where resources wouldn't be owned by private individuals and it is clear that you haven't put a lot of thought into how it would work at the practical day to day level. Other systems that do seek to eliminate private ownership of resources have been proposed that have actually addressed those questions and are at least plausible (RBE for example). However, it isn't coming to the US in our lifetimes so theorizing about it is at best just laying the groundwork so some country a couple hundred years from now might be able to try it. 

I'm not interested in going down the path of hypothetical systems without land ownership. What I am interested in is other peoples opinions and thoughts about conservation easements in a system where private land ownership does exist.  

About the same argument was made before the civil war about owning people as you make now about owning nature. This is kind of like arguing if you don't beat your slaves, should you get a tax break. That changed so maybe just a matter of time before owning nature will be banned.

To answer the immediate question, any activity that is bad for the environment should be heavily taxed. Instead in our crazy society, we tax work and career sucess.

Taxation is the price we pay for failing to build a civilized society. The higher the tax level, the greater the failure. A centrally planned totalitarian state represents a complete defeat for the civilized world, while a totally voluntary society represents its ultimate success. --Mark Skousen

Vastet's picture

You've never grasped the

You've never grasped the fact that taxes are necessary for a functional society. That being taxed allows you to make money in the first place. You can't make an income if there are no roads to deliver product, no police to protect that product, no firefighters to keep the product in saleable condition, no government appointed and enforced judge's to ensure your competitors don't just blow your head off and take all your stuff for themselves, and no doctors to keep your customers and yourself healthy and alive. None of those things happen on their own. And whenever private individuals invest in such ventures, they have no appreciation for the fact that others are also trying to get by, and they'll charge whatever they want to maximise profits at everyone's expense. They almost never see that they'd make more and be more secure long term if they charged enough to make their investment back in a reasonable time instead of ASAP. That raising prices after their investment has paid off two-fold is simply limiting their own income, as well as negatively impacting everyone else.

If you don't like taxes, go live in the woods on your own. You don't want to contribute to society then stop leeching off of it like a welfare bum.

Proud Canadian, Enlightened Atheist, Gaming God.

Beyond Saving's picture

Vastet wrote:Ouch. If the

Vastet wrote:

Ouch. If the tax breaks are rescinded by the government do the owners have a case for reclaiming the development rights?

There was a recent court decision where a couple purchased a ranch with a conservation easement and sued to get the development rights back because they couldn't afford the taxes. They won at the district level, but it will likely be appealed and who knows how the higher courts are going to decide.

So far, the prevalent pattern has been to sue the government for the tax breaks and in most cases the government has folded before the case gets to higher courts and the land owner pays very little tax on the land (generally 10-20% of what their property taxes would be if it didn't have an easement). The reality is that county governments responsible for collecting property taxes don't have a lot of money to waste on long court battles and when the environmental lobbies along with wealthy landowners start throwing a few thousand dollars into elections, county politicians began to fear for their jobs. Average Joe Schmoe doesn't even notice that he is subsidizing some rich guys backyard with his property tax bill. It is a case where the highly active minority holds more sway than the ignorant and uncaring majority.  

If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X