Creating a Historical Easement
I have felt a deep affection for every house I have lived in. And I have lived in many; a career first in nonprofits and then in the law has taken me from the US to the UK, to Central America and central Africa, South Korea, and beyond. Occasionally I have been lucky enough to live in a building of real historical interest and in these places especially it is easy to feel the connect to a shared past. It is also natural in such places to think with gratitude about the people who kept these places standing. When I see these places it reminds me of Proust’s loving description of the church at Combray:
“[…] the building became a place of a totally different order from the rest of the village: it existed in four-dimensional space—its fourth dimension being Time—occupying centuries with its nave which, from bay to bay and chapel to chapel, seemed to straddle not only a few yards but whole eras of history which had left it unvanquished; […]”
For those who have come into the charge of places touched so beautifully and importantly by history, the question inevitably arises of how to act upon their stewardship and how to preserve a tangible piece of history for future generations. Part of this question is the simple preservation of the living structure, and partly whether to create a legacy that includes the public in its appreciation.
For preserving a building’s historical character a fairly simple tool exists. I am going to describe the process as it occurs under New York state law, but as always, keep in mind that this is a general description and not legal guidance to be applied in a particular case. A historical conservation easement is created through a formal agreement between a property owner and a qualified easement holder, typically a nonprofit organization or a governmental entity dedicated to preservation. The process begins with the property owner expressing their intention to preserve the historical aspects of their property. This involves identifying the specific features and qualities that contribute to the property's historical significance. The easement agreement outlines the restrictions and obligations related to maintenance, alterations, and potential development, ensuring that any changes align with preservation goals. Legal documentation is then drafted, often requiring input from preservation experts to ensure compliance with relevant laws and standards.
Once the terms are established, the easement must be executed in writing and typically recorded with the local county clerk’s office, making it a matter of public record. This step is crucial as it establishes the legal enforceability of the easement and informs future property owners of the restrictions in place. In some cases, the property owner may also need to obtain approval from local preservation boards or agencies, depending on the property's designation and the local regulations in effect. By following this process, the historical conservation easement helps to safeguard the property's heritage for future generations. I will save the discussion of the tax treatment and gift planning aspects of a historical easement for a separate blog post, because I want to discuss the particular importance of choosing a qualified easement holder that is both willing and able to uphold the original intent of the property owner. Historical preservation easements are often the subject of intense litigation. Major recent cases in New York include Miller v. City of New York (2009), Nassau County v. State of New York (2011), and Hudson Valley Conservation v. Town of New Paltz (2016). The good news is that in each of these these courts sided with the validity of the easement and the donative intent of the property owner, but the mere fact that the easements had to be defended in court shows how important it is to find an easement holder who would be prepared to fight if out in court should it come to that. As usual, this is where an experienced advisor with local expertise and current knowledge are indispensable.