Standard Operating Procedures for Easement-Holding Organizations

By Raina Regan posted 10-25-2021 12:37

  

How can preservation organizations ensure consistent stewardship of preservation easements over time, particularly with staff or organizational changes? Developing and adopting policies and procedures can improve the long-term stewardship and enforcement of the agreements they hold. Whether your organization is considering holding easements for the first time or you are looking to update your easement practices, implementing standard operating procedures can direct your program’s success. The National Trust published model standard operating procedures to guide easement-holding organizations in adopting the best practices in the acquisition and stewardship of preservation and conservation easements.

Standard Operating Procedures

The National Trust created model standard operating procedures for implementation by preservation easement-holding organizations. Standard operating procedures (SOPs) provide guidance to the organization’s staff on the procedures for administering their easements. The SOPs should be more detailed than a board-level easement policy, which typically establishes the purpose of the organization’s easement program, along with establishing criteria for accepting, amending, and extinguishing easements.

A stately home sitting in the background of a wide green lawn that also serves as a golf course.
Riverbend, Kohler, Wisconsin; Protected by a Preservation and Conservation Easement held by the National Trust.| Photo Credit: National Trust for Historic Preservation.


The National Trust has adopted the February 3, 2017 Land Trust Standards and Practices as guidelines for its general operations and is committed to the implementation of those standards and practices in its land holding and easement programs. As part of our commitment to those standards and practices, we developed SOPs that address six elements of easement program administration: transactions, recordkeeping, inspections, requests for approval, amendments, and violations. Several templates and examples provided by the Land Trust Alliance were referenced when drafting the National Trust’s model SOPs. Using this model as a template, your SOPs should address the organization’s acquisition of new preservation easements, along with outlining the ongoing stewardship responsibilities.

Acquisitions

Documenting your organization’s process for accepting new preservation easements will ensure you can consistently communicate the process to easement donors. Include procedures for how your organization will undertake a property evaluation and due diligence before agreeing to accept the easement. For organizations that will accept tax-motivated easements, SOPs are an excellent way to document how your organization will communicate the requirements of Section 170 of the Internal Revenue Code to potential donors. It is particularly important to document how your organization will review the draft and final appraisal, and determine whether to sign an IRS Form 8283. Lastly, your SOPs should include details on easement drafting, baseline documentation, endowment or stewardship contributions, approvals, and recording.

Stewardship

Stewardship SOPs outlining the organization’s practices for managing existing easements will facilitate consistent relationships with your easement property owners. Broad details regarding the organization’s recordkeeping and inspection procedures are necessary SOPs, but these activities are best suited for supplemental program guidelines that can instruct staff how to complete these ongoing tasks. Standard operating procedures for project review should outline the organization’s practices for reviewing requests for approval under the easement. Project review SOPs should include details such as the submission requirements, internal review process, and if any additional parties or committees will be consulted on projects.

As outlined in the model SOPs and as is our practice at the National Trust, the staff has the discretion to approve certain requests, while consulting with an internal project review committee for certain types of requests. Lastly, any project review SOPs should include how the organization will issue approvals or denials.

Exterior of a brick house with a rounded entry way and stairs leading up. It is surrounded by a brick walkway with a modern office building gin the background.
The Octagon, Washington, District of Columbia. Protected by a Preservation and Conservation Easement held by the National Trust, which includes extensive easement protections on the interior of the building. | Credit: National Trust for Historic Preservation

Standard operating procedures on amendments and violations are essential for your organization’s easement program. Fundamentally, preservation organizations should only amend easements in rare occasions in accordance with applicable laws, with a beneficial or neutral effect on the property’s preservation and conservation values or to correct an obvious error or oversight.

Through the model SOPs, the National Trust supports preservation organizations adopting the Land Trust Alliance’s amendment principles—outlined in the 2017 publication Amending Conservation Easements: Evolving Practices and Legal Principles. Organizations should apply a high degree of scrutiny to proposed amendments, and implementing SOPs for amendments can help ensure a responsible decision-making process.

Similarly, adopting SOPs for violations will ensure a systematic approach to your organization’s easement enforcement. Violation SOPs should provide staff with guiding principles, recognizing that different types of violations should require different strategies for enforcement. Having procedures in place to respond to violations will empower staff to deal with these issues as they arise, creating an opportunity to resolve more violations quickly and with a goal to avoid legal action.   

As noted throughout the model SOPs, your organization will likely have different approaches to acquisition or stewardship practices. Certain state enabling laws require different procedures as it relates to the acquisition of, or amendment to, preservation and conservation easements. For those easement-holding organizations in those states, it is strongly recommended that you consult with your legal counsel to ensure your SOPs capture state-level requirements. The SOPs should be reviewed by your organization’s leadership, legal counsel, and may be reviewed by a Board committee or other applicable regulatory body. We encourage all easement-holding organizations to utilize these model SOPs as a starting point to develop their own written procedures and guidelines for their easement program.

Program Guidelines

Organizations can utilize program guidelines as supplemental material to their SOPs to document day-to-day tasks. Your organization’s easement monitoring process is a good example of an activity that should be well documented utilizing program guidelines. Many organizations utilize interns, volunteers, or consultants to complete easement inspections.

Providing detailed guidance on how to complete the monitoring process will ensure that it stays consistent year after year. It is important to memorialize how to conduct these activities, but with the flexibility to change your procedures as needed, as many organizations adjusted practices due to the COVID-19 pandemic. At the National Trust, we have program guidelines on conducting easement inspections, completing baseline documentation, recordkeeping and digital file naming, and property owner communications.

Conclusion

Documenting your organization’s easement policies and procedures are a critical tool in the perpetual administration of these agreements. Adopting easement standard operating procedures is one way to support your organization’s succession planning. Ultimately, providing a consistent relationship between your organization and the easement property owner will lead to better easement compliance and preservation of your protected resources.

Raina Regan is the director of the Easement Program at the National Trust for Historic Preservation.


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