Preservation Easements: A Resource to Preserve Your Historic Property
What is a Historic Preservation Easement?
Preservation easements are legal agreements that protect significant features of a historic property. They are customized to reflect the property’s special historic features and the owner’s wishes.
In general, an easement is a voluntary legal agreement that conveys to a second party a partial interest or right in a property but does not convey ownership. A familiar example is a right-of-way in which a property owner gives a neighbor or a utility company the right to cross his or her property.
With an historic preservation easement, the right that an owner gives to the second party is the right to protect and preserve the historic character of the property. It is a legally enforceable agreement that allows the owner of the property to retain ownership, use and possession while granting to someone else the authority to protect the historic and architectural features of the property. The owner retains all of the usual rights to the property except the right to substantially alter or fail to maintain the historic character of the property.
How does a preservation easement work?
The parties to an easement are known as the “grantor” and the “grantee.” The property owner is the grantor and the holder of the easement is the grantee.
The easement document contains a legal description of the property and clearly describes the features to be protected. The description includes the primary building(s) on the property and often other historic structures, such as outbuildings, as well. If the easement covers interior features, they must also be clearly described. Archaeological sites, historic landscape features, and adjacent open space may also be protected.
The easement will define and prohibit any incompatible activities, such as alteration, demolition, commercial development, subdivision, or other actions that are determined to be inappropriate. The easement will clearly describe an inspection and maintenance schedule for the property. It will also provide details about how the grantee will monitor the property and how often.
Preservation easements must contain binding and enforceable covenants that run with the property and obligate the owner and all subsequent owners to refrain from actions that are incompatible with the preservation of the property. As a legal document, the easement is filed in the county registry of deeds along with all other legal documents relating to the property so that all future owners and lenders will learn about the restrictions when they obtain title reports.
Who can grant an easement? Who can hold one?
Any owner of property with conservation or historic resources may grant an easement. If the property belongs to more than one person, all owners, including mortgage holders, must consent to granting an easement. If the property is mortgaged, the owner must obtain an agreement from the lender to subordinate its interests to those of the easement holder so that the easement cannot be extinguished in the event of foreclosure.
The holder of the easement may be a governmental unit or a non-profit organization, and it must be qualified to enter into property agreements and have the resources to enforce the agreement. It is important that the easement holder have no interest in the property other than the preservation of its historic character.
Easement-holding entities may be town governing boards, state agencies, or non-profits such as the New Hampshire Preservation Alliance or Historic New England (formerly the Society for the Preservation of New England Antiquities). It is possible that a local historical organization, such as a historical society or heritage commission, could also hold an easement, if their by-laws allowed them to do so and they had the financial and staff resources to monitor and enforce the easement. (The Manchester Historic Association holds an easement on the Frank Carpenter House, for example.)
How Long Does an Easement Last?
An easement can be written so that it lasts forever. This is known as a perpetual easement or an easement in perpetuity. An easement written for a specified period of time is known as a term easement. For federal tax purposes, only gifts of perpetual easements allow a donor to claim income and estate tax benefits.
Does an Easement Affect the Sale of a Property?
Preservation easements have been used since 1955 and there are now thousands in place throughout the country. They provide protections and a review process that is very similar to that provided by local historic district commissions. Many potential buyers have already had experiences with these commissions, live in historic districts, have rehabilitated historic buildings or appreciate the history of older buildings. To those not experienced or interested in such properties, easements may seem like an unreasonable burden, but to those who appreciate history and have experienced the benefits of preservation regulations, easements are understood and accepted. When the long-term goal is to preserve the property, an easement eliminates only the buyers who do not share this goal.
Just as land protected by conservation easements still sells, so do buildings protected by historic preservation easements. They are most attractive to those individuals who are actively looking for stable historic properties and want to take advantage of a preservation partnership with the easement holder to gain on-going technical help and assistance.
What properties does the NH Preservation Alliance protect with easements?
The Alliance currently holds thirteen easements and has helped conservation and heritage groups develop others. For more information about easements, please contact us.
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