Preservation Easements

Similar to conservation easements, preservation easements protect against undesirable development or indirect deterioration of historic sites. Preservation easements may provide the most effective legal tool for the protection of privately-owned historic properties. Such easements are usually expressly created and incorporated into formal historic preservation easement deeds. Depending on the terms of the easement, preservation easements can prohibit actions such as:

• 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 also known as covenants and are legally binding.

Preservation Easements and Taxes

The property continues on the tax rolls at its current use designation rather than its value if developed, thereby giving the property owner certain tax benefits and incentives.

The same standards are used in conservation easements to determine the qualified tax deduction. The easement donor is entitled to a charitable contribution and federal income tax deduction in the amount of the fair market value of the easement. The donor receives a tax deduction in the same way that they would if they were to donate to any other nonprofit or charitable foundation.

The Internal Revenue Service requires the following from the easement donor in any tax filings related to the easement donation:

• A copy of the appraisal of the donated land or building, which must be executed by a qualified appraiser and signed by that individual,
• Photographs of every side of the exterior of the building or land that has been donated, and
• A description of every restriction on developments of the building or land that has been donated.

Attaching a copy of the easement deed, containing a list of the restrictions, to the tax filing is enough for purposes of satisfying the IRS' requirements for a donor's easement-related tax disclosures.

However, an easement to preserve a historic structure or historic building must protect a structure or area listed in the National Register (or located in a National Register district) and certified by the Secretary of the Interior as being of historic significance to the district.

The donation of an easement over any historically important land area includes:

• Land that is either independently significant and meets the National Register's criteria for evaluation, or
• Land that is adjacent to a property listed individually in the National Register of Historic Places.

The second type of land mentioned immediately above applies to cases where the physical or environmental features of the land area contribute to the historic or cultural integrity of the property.

"Historically Important" Land

The definition of a historically important land area includes structures or land area within a registered historic district, except buildings that cannot reasonably be considered as contributing to the historic character of the district.

To qualify as a preservation easement, the donation must be protected in perpetuity and apply to future owners. Because of this point, rights of mortgagors must be carefully set out in the easement to avoid loss of the easement in the event of foreclosure.

Need Help with an Easement? Speak with an Attorney

The times keep changing and neighborhoods continue to evolve. However, sometimes it's worth holding onto certain historic resources. Preservation easements allow for the protection of historical properties, but they can be quite complex and may require an attorney's experience and training. Consider speaking with a qualified real estate attorney near you today.