The age of Massachusetts lends itself well to preservation easements. These kinds of easements, also referred to as preservation restrictions, create tax and other benefits for owners of historic properties in exchange for certain restrictions that will protect and preserve the historical and architectural significance of relevant structures and/or landscape features.
The use of preservation easements is very much active, even today. Given the age of many homes in Brookline, it might be hard to believe that only a few weeks ago did the town’s first home become part of the Historic New England Stewardship Easement Program, a preservation easement program which has existed formally since 1981 (though easements have been acquired since the late 1940s). But that’s what just happened to a 17th century home, one of the oldest in Brookline. For details about the home (including photos and video) click over to this report.
Historic preservation easements, which can also be conveyed to other qualified groups such as historical commissions and preservation trusts, involve a grant of legal rights by the landowner in exchange for certain benefits. The primary benefit to the landowner granting the easement-other than the satisfaction of preserving an important piece of history-is typically a tax deduction. The grantee of the easement, on the other hand, acquires some legal interest in the property that helps to preserve the historical character. Many times the easements are simply donated, though various funding sources (i.e. private donations, grant funds, and Community Preservation Act monies) can also be used as consideration when structuring these kinds of conveyances.
The preservation easement agreement subjects the property to certain restrictions that are geared toward preserving important historical aspects. This often means that things like paint color, wallpaper, structural features, and landscape features (like stone walls) are expressly limited or preserved. The restrictions will vary depending on the nature of the property, and can often include both interior and exterior features.
Anyone creating a preservation easement, or buying a property subject to one, must understand the full scope of what will and will not be allowed on the property once the easement is in place. This potentially means that certain kinds of alterations or renovations will be limited or prohibited altogether. Subdivision of land can even be prohibited under some preservation restrictions.
And, as the National Park Service points out in a 2010 general guide about historic preservation easements, the requirements for creating these easements (and obtaining the benefits from them) can be rigorous and technically complex, often requiring the assistance of qualified professionals like attorneys, real estate appraisers and/or accountants. There are also often various insurance and monitoring requirements that go hand in hand with preservation easements.
Ultimately, preservation easements are another important tool that can be effective toward protecting homes with historical significance and character, much like the one recently in Brookline.
For more information about historic preservation easements in Massachusetts and in general, here are a few good links:
Nantucket Preservation Trust
National Trust for Historic Preservation (lists MA state historic preservation offices)
A 2012 Nebraska Law Review article, Preserving Preservation Easements?: Preservation Easements in an Uncertain Regulatory Future, by Jess R. Phelps (of Historic New England)
Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.