What is a Conservation Easement?
A conservation easement, which includes historic preservation and open-space easements, is a legal land preservation agreement between a landowner and a governmental or non-profit conservation organization (land trust) that protects the conservation values of a property, through perpetual limits on future development of the land. The easement may also include special protections for historic, cultural, natural, scenic, or open-space resources on the property. Most often, landowners voluntarily donate easements and receive some federal or state tax benefits for their charitable gift.
Every easement is unique. The terms and provisions are negotiated between the landowner and the holder of the easement. The easement is perpetual and binds all future owners of the property. Except for rights specifically relinquished in the easement deed, the landowner continues to own, use, and control the land. For example, land ownership is often described as a bundle of sticks. The entire bundle is fee simple title to the property. The owner of that bundle can give or sell a few sticks without losing or compromising his or her ownership of all of the other sticks in the bundle. Donation of a conservation easement is a complex process. It requires consultation with legal and tax counsel to ensure compliance with State and Federal tax code and guidelines for conservation easements.
What is an Historic Preservation Easement?
An historic preservation easement is a type of conservation easement. The name has less to do with the way the agreement works than with the kind of site and land it protects.
What is the difference between the Virginia Board of Historic Resources (“Board”) and the Virginia Department of Historic Resources (“DHR”)?
The Board is authorized by statute to hold easements to protect historic resources throughout the Commonwealth. DHR administers those easements on behalf of the Board.
What legislation in Virginia authorizes conservation easements?
A. Virginia Code § 10.1-2204 authorizes the Board to hold easements on historic properties listed on the Virginia Landmarks Register as well as Virginia battlefields. Easements held by the Board are administered by staff at the VDHR.
B. Virginia Code § 10.1-1701 (Virginia Open-Space Land Act) declares that the preservation of open-space land serves a public purpose, and authorizes any public body to receive easements in gross for the protection of such land.
C. Virginia Code § 10.1-1009 (Virginia Conservation Easement Act) authorizes charitable organizations to hold non-possessory interests in real property for the purpose of conservation.
D. Constitution of Virginia, Article XI: [I]t shall be the policy of the Commonwealth to conserve, develop, and utilize its natural resources, its public lands, and its historic sites and buildings. Further, it shall be the Commonwealth’s policy to protect its atmosphere, lands, and water from pollution, impairment, or destruction, for the benefit, enjoyment, and general welfare of the people of the Commonwealth.
What properties are eligible for the DHR Easement Program?
Throughout Virginia, properties with significant historic, open-space, scenic, or natural values are eligible for the donation of an easement. All easements conveyed to the Virginia Board of Historic Resources must meet one of the following criteria:
A. Property is individually listed in the Virginia Landmarks Register (VLR)
B. Property is a contributing resource within a VLR-listed historic district
C. Property is a Virginia battlefield or site identified with a priority rating in one of the following reports issued by the National Park Service's American Battlefield Protection Program: “Report on the Nation's Civil War Battlefields (1993),” as amended (available at the following web link: http://www.nps.gov/abpp/battles/tvii.htm), or “Report to Congress on the Historic Preservation of Revolutionary War and War of 1812 Sites in the United States (2007),” as amended (available at the following web link: http://www.nps.gov/abpp/Rev1812_Final_Report.pdf).
How do Conservation Easements work in Virginia?
In Virginia, the state-established Virginia Outdoors Foundation holds the vast majority of open-space easements, although other public entities such as the Virginia Board of Historic Resources (as administered by DHR), the Virginia Department of Forestry, and the Virginia Department of Conservation and Recreation also hold easements.
Additionally, a number of non-profit land conservation organizations, also known as land trusts or land conservancies, hold easements throughout the Commonwealth. These include land trusts such as the Piedmont Environmental Council, the Land Trust of Virginia, the Northern Virginia Conservation Trust, the Eastern Shore Land Trust, and the Williamsburg Land Conservancy among others. In general, easements held by these conservation organizations in Virginia will incorporate the following:
What is the difference between an historic preservation easement and a façade easement?
Historic preservation easements are sometimes distinguished from façade easements, which generally protect only the exterior of a historic building. In most cases, the Virginia Board of Historic Resources only accepts easements that protect both the exterior and interior of all significant historic buildings and structures on a property. However, some easements protect only the exterior in its entirety. The extent of the protection depends on the resource itself.
What is the process for conveying an historic preservation easement to the Virginia Board of Historic Resources ("Board")?
Upon receipt of a completed Easement Application Form and supporting documentation, DHR easement staff will notify the landowner and the easement offer will be placed on the next meeting agenda of the Easement Acceptance Committee. DHR has an Easement Acceptance Committee that considers each easement offer. The Committee reviews the historic significance and integrity of the property as well as its character defining architectural, archeological features and/or setting and landscape features. This Committee meets on a bi-monthly basis.
Once the Easement Acceptance Committee recommends approval, the offer is presented to the Board for approval. The Board meets on a quarterly basis in March, June, September, and December. After the Board formally approves the easement offer, the easement deed can be signed and recorded. This process takes an average of at least twelve months. An outline of this process is included at the end of this document as Appendix A and easement staff contact information is available as Appendix B.
If my property is subject to an easement held by the Board, can I participate in the Virginia Rehabilitation Tax Credit Program?
Yes. The owner of a property subject to an easement held by the Board may participate in the Virginia Rehabilitation Tax Credit Program. The project will be reviewed by an Easement staff member according to the requirements of DHR’s Easement Program and Rehabilitation Tax Credit Program.
If I donated an easement and claimed a Land Preservation Tax Credit in Virginia, can I also claim a tax credit under the Virginia Rehabilitation Tax Credit Program?
You may or may not be able to claim a tax credit under the Virginia Rehabilitation Tax Credit Program. Any building or improvement that serves as the basis, in whole or in part, of a Virginia Land Preservation Tax Credit under the Virginia Conservation Easement Act, cannot also serve as the basis for a historic rehabilitation tax credit for a period of five years following the donation on which the credit is based. This rule is property specific and not owner specific. If the property is sold by the owner who granted the easement, the new landowner is still subject to the five-year exclusivity rule. DHR recommends landowners contact the Virginia Tax Department for additional information on this rule.
I purchased a property subject to an easement held by the DHR Board of Historic Resources and granted by the previous landowner three years ago. The previous landowner claimed a Virginia Land Preservation Tax Credit for the easement donation, which included the historic manor house as part of the basis for the tax credit. The manor house needs some rehabilitation work. Am I able to claim a credit now if I participate in the Virginia Rehabilitation Tax Credit Program?
No. Any building or improvement that serves as the basis, in whole or in part, of a Virginia Land Preservation Tax Credit cannot also serve as the basis for a historic rehabilitation tax credit for a period of five years following the donation on which the credit is based. The new landowner must wait until the five year period is complete before claiming credits under the Rehabilitation Tax Credit Program.