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Historic Preservation Easements

Easement Terms & Conditions

By placing a property under easement, the Commonwealth has determined that the historic character and the public benefit gained by easing the property warrant its protection - in roughly its current form and condition - in perpetuity. It is the policy of the Virginia Board of Historic Resources (the “Board”) and the Virginia Department of Historic Resources (DHR) to accept only easements of perpetual duration. As an easement holding organization, the Board and DHR will work with property owners and their legal counsel to develop easement language that serves to protect the property subject to the easement. DHR will continue to update the standard template language to be included in all easements as necessary to reflect changes in federal and state law and historic preservation procedures and practices. It is the policy of the Board and DHR to develop language for each easement that will be both flexible and strong enough to remain in force in perpetuity.

The Board has formally adopted the following policies related to acceptance and drafting of easements it holds: Easement Program Policy #2: Easement Acceptance and Easement Program Policy #9: Easement Requirements.

Please review the following commonly asked questions about easement terms and conditions.

Does the general public have the right to access my property?

No, the general public at large does not have the right to access your property. However, easements held by the Board/DHR will include a public access provision for opening the property to the public on a limited basis. In order for an easement to be deductible for tax purposes, the Internal Revenue Code and U.S. Treasury Regulations require that there be a “direct public benefit” associated with the Deed of Gift of Easement. Easement Program Policy #9: Easement Requirements, adopted by the Board, notes that in order to derive maximum public benefit from properties under easement, it is the policy of the Board and DHR to include provisions for public access in the easement document.

Will Easement Staff be required to inspect or visit my property?

Regular monitoring and inspections are part of DHR’s stewardship responsibility as a qualified holder of historic easements. Prior to a request for a visit, you will receive advance notification, in most cases via U.S. Mail. The inspection itself is a visit intended to monitor and document the current condition of the easement property, specific to the individual easement provisions. This is done through visual observation and photographic documentation. Easement staff will compile this information into a brief written report for owner review. The report is added to the property file to assist DHR in future stewardship efforts. This visit is also a good opportunity to request technical assistance from easement staff. Easement staff is available for technical assistance to all property owners, no matter what the magnitude of the proposed scope of work.

Can I sell a property subject to an easement held by the Board?

Yes. Many of Virginia's privately-owned easement properties have changed hands since the easement was donated. The easements help ensure that the subsequent owners respect various historic characteristics of the properties. The language of the easement usually requires the property owner to notify DHR regarding any change or transfer in ownership.

Will the easement contain restrictions regarding the historic dwelling or barn on my property?

Yes. The easement will contain a provision requiring prior review and written approval for alterations to historically significant built resources on the property. In most cases, the Board only accepts easements that protect both the exterior and interior of all significant historic buildings and structures on a property. The type of alterations requiring review are outlined in detail in Easement Program Policy #5 Review of Applications for Work on Easement Properties. The extent of the protection required depends on the resource itself and any restrictions will be negotiated with the property owner prior to recordation of the easement. It should be noted that each easement is drafted with specific reserved rights and restrictions, and that some easements may allow or prohibit certain alterations.

What provisions about archaeological sites and features will be included in my easement? What type of ground disturbance will trigger archaeological survey? How much will it cost?

If your property includes known archaeological sites, the survey requirement would be triggered by any ground-disturbing activity in the area containing the site(s). Otherwise, any project that involves significant ground disturbance may result in a request for archaeological investigation. Significant ground disturbance would include such activities as grading, digging for a cellar, footers, or foundation, excavating to install equipment such as a geothermal bed, or road construction. Generally speaking, agricultural planting and harvesting in areas that have been in agricultural use, as well as domestic gardening, is not considered significant ground disturbance. DHR will work with easement property owners to restrict requests for archaeological survey only to those absolutely necessary to protect the historic integrity of the property.

Please be aware that all archaeological survey on an easement property must be performed by or under the supervision of an archaeologist who meets the Secretary of the Interior’s professional qualifications standards for archaeology. Costs for archaeological survey vary widely depending on the amount of work to be done. DHR cannot provide cost estimates, but can provide property owners with a list of professional archaeologists working in Virginia who meet the Secretary’s Standards. DHR recommends that any property owner considering archaeological survey obtain at least three independent quotes before contracting for any such work, and staff is willing to review proposals, quotes, and any other information and provide advice to the property owner.

Updated: 9.30.2013