Mortgages on conservation easement properties

National Conservation Buzz Topic: Can a mortgage violate your conservation easement?

Curious about how a mortgage or deed of trust could impact your conservation easement? Imagine you need to borrow money at some point, and use your conservation easement property as collateral for the loan. A mortgage typically is not prohibited by a conservation easement.

But consider this: conservation easements limit, and many outright prohibit, dividing the property into smaller parcels. A violation could arise if a mortgage is placed on only a portion of a conservation property (rather than the whole conservation property).

Why? If a lender ever had to foreclose on the mortgage and take title to the portion of the property with the lien, that foreclosure would divide ownership of the property. The lender would own one part of the property and the landowner the rest. As noted above, many conservation easements don’t allow such divided ownership. And, in some states, the act of simply taking out the mortgage on a portion of the property can constitute a legal division.

When considering a mortgage on an existing conservation easement, please consult with your attorney and SAHC staff before you close the loan to ensure no impermissible divisions could occur.

Boundary Posting and 3rd Party Trespass

A common challenge for landowners and land trusts alike is trespassing by third parties. If a property is not adequately marked, it’s more difficult to protect against 3rd party trespass and other encroachment issues — such as timber theft, poaching, unauthorized ATV use, etc. Such activities can negatively impact a property’s conservation values.

Posting property lines, especially in accordance with North Carolina’s Landowner Protection Act (LPA), can offer protection from trespassing. The LPA, which clarifies some of the common hunting and recreational trespass issues landowners encounter, provides two ways for landholders to post their lands to allow only hunters, trappers and anglers with written permission to legally enter their property: signs and purple paint. Click here for details on how to post a property in accordance with the LPA.

Other important trespassing facts and laws relevant to landowners include:

  • No one can operate a motorized all-terrain-vehicle on another’s property without written permission from the landowner (see G.S. 14-159.3(a)(1)).
  • It is illegal (Class 3 misdemeanor) to destroy or mutilate any “posted” or “no hunting” or similar signs on the land of another, or post similar signs on the land of another (see G.S. 14-159.8).
  • It is considered second degree trespass (Class 3 misdemeanor) to remain on the premises of another without authorization after being told by an authorized party to leave (see G.S. 14-159.13).
  • It is illegal to cut, injure or remove another’s timber (see G.S. 14-135), which could result in double damages (G.S.1-539.1), and larceny of goods such as timber is a Class H felony if the value of goods is greater than $1,000 (see G.S. 14-72).

If trespass is suspected, try contacting the Sheriff’s office or NC Wildlife Resources Commission law enforcement (contact information here). A provision of the LPA allows wildlife officers to enforce trespass laws immediately, instead of having to first obtain an arrest warrant or criminal summons.

SAHC stewardship staff is happy to help with posting boundaries. Contact your stewardship lead, Hanni or Sarah, for assistance.

Introducing the Hemlock Restoration Initiative

Hemlock Restoration InitiativeUntil recently, landowners with hemlock trees had few options available for prevention or treatment of the exotic invasive Hemlock Woolly Adelgid (HWA), an aphid-like insect that feeds on hemlocks and ultimately kills them. However, the Hemlock Restoration Initiative (HRI) is stepping forward to connect landowners, HWA researchers, government agencies and landowners, among others, to comprehensively address the adelgid invasion.
 
So, how can you help in restoring hemlocks on your property and elsewhere? HRI recommends the following:

  • Educate yourself – Visit the HRI website to learn more about the HWA, including how to identify it and what your treatment options may be.
  • Protect high value trees – For those interested in do-it-yourself management, soil injections may be an option; injection prices have continued to drop while treatment effectiveness has increased.
  • Look for resistant hemlocks – If you have noted previously untreated, healthy hemlocks on your property, you may have found a HWA resistant strain. Learn how to identify and report potentially resistant trees here.
  • Follow the beetles – Researchers have introduced predatory beetles (Laricobius nigrinus) that prey on the HWA as a long term biological control. Visit the HRI beetle page for up-to-date information on past releases and locations.

Put an End to Poaching

nctipThe NC Wildlife Resources Commission has a new poaching enforcement program called TIP – Turn In Poachers. Poaching includes not only the illegal taking of game and fish, but also taking protected plants, trespassing, littering, theft and destruction of property. Depending on the severity of the violation, members who turn in poachers may receive a cash reward ($100-$1,000). You can turn in poachers 4 ways: the internet, a mobile app, text or phone. Learn more about what you can do to stop poaching here.

For our Tennessee landowners, the TN Wildlife Resources Agency (TWRA) offers a reward up to $1,000 for information leading to the arrest and conviction of wildlife poachers. Individuals with information about poachers or poaching activities can contact the TWRA by calling one of the regional offices from 7:00 am until 12:00 midnight, seven days a week. For more information, visit TWRA’s website

Forestry Cost Share Opportunities

ncforestserviceDid you know that many federal and state cost-sharing programs exist that can help landowners afford the cost of sustainably managing forested properties? If you have property in NC, you may be interested in the following:

 

  • NC Forest Development ProgramThe North Carolina Forest Service (NCFS) will reimburse landowners 40-60% of the cost of reforesting their land, provided they have a Forest Management Plan (FMP) and at least 5 acres needing reforestation (100 acres maximum). Click here for more information and requirements.
  • NC Southern Pine Beetle Prevention Program The NCFS will reimburse landowners up to 50% of the cost of precommercial thinning of pine stands in order to prevent outbreaks of the Southern Pine Beetle. A FMP, 5 acre area minimum and the potential for beetle infestation are required. Click here for more information and stipulations.
  • NCFS Community Protection PlanLandowners who live within 10 miles of National Forest land may be eligible for free controlled burning and mechanical fuels reduction of their property performed by the NCFS with funding assistance from the USDA. There is no minimum acreage requirement, and landowners can receive two full rotations. Contact your county forest ranger or visit here to learn more.

PLEASE NOTE: Some conservation easements allow for limited forestry activities pursuant to a Forest Management Plan. Check your conservation easement for specific requirements.