Similar to conservation easements, preservation easements protect against undesirable development or indirect deterioration. 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 preservation easement deeds. Preservation easements can prohibit such actions as:
- Alteration of the structure’s significant features,
- Changes in the usage of the building and land or subdivision, and
- Topographic changes to the property.
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.
The same standards are used as in conservation easements to determine the qualified tax deduction. The donor is entitled to a charitable contribution deduction in the amount of the fair market value of the donated interest. However, an easement to preserve a historic structure 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 an historically important land area includes land that is either independently significant and meets National Register criteria for evaluation, or is adjacent to a property listed individually in the National Register of Historic Places (in a case 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 significance of the district. To qualify as a preservation easement, the donation must be protected in perpetuity. Because of this point, rights of mortgagers must be carefully set out in the easement to avoid loss of the easement in the event of foreclosure.