What Is a Preservation Easement?

The government has an interest in preserving properties with unique historic value. So, it provides incentives to property owners who agree to protect and maintain that value. 

For a private property owner to gain those benefits, a preservation easement must be in place. An easement allows the property owner to keep their ownership rights. But in exchange, the owner loses the ability to use or change the property in some ways.

If you buy a historic property subject to an existing easement or the potential for one, get legal advice to understand this impact. A real estate attorney can explain how an easement can limit your land use rights and what you can gain in exchange.

Purpose of a Preservation Easement

Like conservation easements, preservation easements protect against undesirable development and indirect deterioration of historic sites. They provide a public benefit by allowing qualified organizations, such as the National Park Service, to maintain historic landmarks inside of land trusts.

Preservation easements are an effective legal tool for protecting privately owned historic properties. They are usually expressly created by formal historic preservation easement deeds.

Preservation Easements Restrict an Owner’s Land Use

Depending on the terms of the easement, preservation easements can prohibit:

• Alteration of the structure’s significant features
• Changes in the usage of the building and land or sub-part of the land
• Changes to any physical features of the easement property

These restrictions are covenants. As legal agreements, they are binding. Both conservation and preservation easements use those restrictions to protect places. They both require donors and preservation organizations to follow strict guidelines.

The stewardship of an easement-holding organization can:

• Preserve public access to open spaces for future generations
• Advance public benefits rather than the commercial value of the property in question

Why Property Owners Consider Preservation Easements

Property owners enjoy certain tax benefits and tax incentives with a preservation easement. The property continues on the property tax rolls at its current use designation rather than its value if it got developed.

Many owners of historic sites and structures also have a personal interest in protecting this feature. An easement can help make that goal more affordable. 

Tax Benefits of Preservation Easements

The Internal Revenue Service (IRS) uses the same standards for conservation and preservation easements to determine the qualified tax deduction. The easement donor can claim a charitable contribution and federal income tax deduction in the amount of the fair market value.

The donor gets a tax deduction the same way they would if they were to donate to any other nonprofit or charitable foundation. But the IRS requires donors to meet certain formalities.

In any tax filings related to the easement donation, the easement donor must provide:

• A copy of the appraisal of the donated land or building (executed and signed by a qualified appraiser)
• Photographs of every side of the exterior of the building or land donated
• A description of every restriction on developments of the donated building or land

A copy of the easement deed should contain a list of the restrictions. Attaching this to the tax filing is enough to meet Internal Revenue Code requirements.

Preservation of Historic Sites

A preservation easement protects a certified historic structure or historic building. But it must meet certain legal requirements.

The easement must protect a structure or area listed in the National Register of Historic Places. Otherwise, it must be in a National Register district and certified by the Secretary of the Interior as being of historic significance to the district. Donating an easement over any historically important land area includes land that’s independently significant and meets the National Register’s criteria for evaluation.

Alternatively, the land is next to a property listed in the National Register of Historic Places. This second type of land applies to specific cases. In such cases, the physical or environmental features of the land area are in question. They must contribute to the historic or cultural integrity of the property.

What Qualifies as ‘Historically Important’ Land?

A historically important land area includes structures or land within a registered historic district. It excludes buildings that can’t reasonably contribute to historic character.

To qualify as a preservation easement, the donation must:

• Be protected in perpetuity
• Apply to future owners (easement holders such as nonprofit organizations)

The property rights of mortgagors must be carefully set out in the easement. This helps to avoid the loss of easement in the event of foreclosure.

Ask an Attorney About Preserving Your Land

The times keep changing, and neighborhoods continue to evolve. But sometimes, it’s worth holding onto certain historic resources.

Preservation easements allow for the protection of historic properties. But they involve private legal rights. They can be quite complex and may need an attorney’s experience and training. Consider speaking with a qualified real estate attorney near you today.