By Raina Regan and Ross Bradford
The Land Trust Standards and Practices are the “ethical and technical guidelines for the responsible operation of a land trust.” First developed by the Land Trust Alliance in 1989 and revised in subsequent decades, the Standards continue to evolve in response to changing practices in the land trust community. In 2008 the National Trust for Historic Preservation published “Best Practices for Preservation Organizations Involved in Easement and Land Stewardship: An introduction to using Land Trust Standards and Practices as a benchmark for historic preservation organizations.” As described in that guidance:
While Land Trust Standards and Practices were developed primarily for nonprofit, tax-exempt land trusts, they provide important guidance for any nonprofit organization and are especially useful for preservation organizations that hold easements or that are engaged in other types of real estate transactions.
When developing these best practices, we used the 2004 Land Trust Standards and Practices to provide specific guidance for historic preservation organizations. Each of the 12 Standards is broken down into practice elements that advance it. Generally, Standards 1–7 relate to organizational strength, while Standards 8–12 relate to land transactions.
In 2017 the Land Trust Alliance revised the Standards with input from organizations across the United States. Several of the revisions reflected in the 2017 Land Trust Standards and Practices are relevant to historic preservation organizations, and we are highlighting a few of these as particularly applicable in the context of stewarding preservation easements. (Generally, historic preservation organization can be substituted for “land trust”, and preservation for “conservation.”)
Standard 8, practice element B2: Project Selection Criteria
Develop and apply written project-selection criteria that are consistent with the land trust’s conservation priorities
Preservation organizations that accept easements should develop written criteria to define their acquisition strategies. Focus areas, such as geographic regions or resource types, can help preservation organizations set priorities in acquiring new easements. For example, a preservation organization could focus its easement acquisition on resources not represented in its current portfolio, such as Midcentury Modern structures or properties from underrepresented communities. Thoughtfully approaching easement acquisition criteria can increase the effectiveness of a program.
Standard 9, practice element C1: Environmental Due Diligence
For every land and conservation easement transaction, conduct or obtain a preliminary environmental investigation, transaction screen or Phase I assessment to identify whether there are any conditions that pose environmental risks, and take steps to address any significant concerns
This revised practice now requires some level of environmental assessment for every land and conservation easement transaction. While preservation organizations understand the environmental risks commonly associated with historic buildings—e.g., existence of asbestos, underground storage tanks—the level of investigation should be guided by an initial assessment of likely environmental risks. This assessment should be done before purchasing a historic structure or accepting an easement to identify serious liabilities that can compromise long-term stewardship. For example, an organization could use city directories or historic maps to research a property, which may help identify past uses that would typically present environmental risks. Building materials may also present such risks. If environmental concerns are uncovered, a preservation organization may choose to ask the owner to resolve them before purchasing a building or donating an easement, or it may address the concerns during its ownership of the property or while drafting the easement.
In addition to environmental due diligence, the National Trust recommends—as discussed in Standard 8, practice element C—evaluating a property’s current condition. Organizations should visually inspect properties to determine whether there are significant defects that would may make ownership or easement stewardship unduly burdensome.
Standard 9, practice element F1: Title Investigation and Recording
Prior to closing and preferably early in the process, have a title company or attorney investigate title for each property or conservation easement the land trust intends to acquire
a. Update the title at or just prior to closing
As preservation organizations typically protect historic buildings, which require ongoing maintenance, it is not uncommon for encumbrances on a property’s title to be related to work performed by contractors—e.g., mechanics liens or construction loans. Accordingly, it is critical to have a full and updated investigation of the property’s title before completing an easement transaction. If a property is subject to a mortgage or other loan instrument, organizations should seek to minimize or prevent delays in the transaction by starting a conversation regarding subordination with the bank early in the process. Early title investigation can identify any problems before staff time is invested into the easement transaction. Ensuring that a property has a clear title—or being able to properly address existing encumbrances—will avoid extinguishment of the easement.
Standard 11, practice elements A1–2: Funding Easement Stewardship
- Estimate the long-term stewardship and enforcement expenses of each conservation easement transaction
- Track stewardship and enforcement costs
At preservation organizations, staff who engage in easement stewardship may do so in addition to other responsibilities. Preservation organizations should track the time and expenses spent on easement stewardship, including monitoring, site visits, answering questions, and reviewing requests for approval. Fully understanding the long-term costs may require organizations to reassess their stewardship fees or endowment contribution practices to ensure that they have adequate funds and capacity to support the stewardship and enforcement of their easements.
Standard 11, practice element B3: Baseline Documentation Report
When there are significant changes to the land or the conservation easement (such as a result of an amendment or the exercise of a permitted right), document those changes in an appropriate manner, such as through monitoring reports, a baseline supplement or current conditions report
Preservation organizations should update an easement’s baseline documentation after a major rehabilitation or addition to the primary historic resource. To ensure that the property owner will agree, organizations might consider making their approval of a rehabilitation or addition conditional on receiving the owner’s consent to subsequently update baseline documentation. Sufficiently documenting significant changes to a property will improve the long-term stewardship of the easement.
Standard 11, practice elements F1–3 Approvals and Permitted Rights
- Respond to landowner required notices or requests for interpretation or approvals in a timely and consistent manner, as specified in the conservation easement deed or in a written procedure
- Establish written procedures to guide the land trust’s decision-making if using discretionary approvals or if conservation easement deeds contain such clauses
- Maintain a permanent record of all notices, approvals, denials, interpretations and the exercise of any significant permitted rights
As preservation organizations may spend a significant amount of their stewardship on reviewing conditional rights, written procedures are essential for responding to owner requests in a timely and consistent manner. Preservation easements typically describe the standards that the easement holder will use to review potential alterations, such as the Secretary of the Interior’s Standards for the Treatment of Historic Properties. Long-term stewardship of a preservation easement can benefit from a formalized review process, which will ensure that stewardship staff have a record of previously approved alterations and that owners better understand the regulatory role of the organization as easement holder.
The Land Trust Alliance published supporting materials for those interested in learning more about the revisions in the 2017 Land Trust Standards and Practices. We encourage all preservation organizations to evaluate their current easement and land stewardship practices, along with organizational operations and governance, against the 2017 Standards. Adhering to best practices can help preservation organizations identify areas for improved organizational capacity and stewardship.
Raina Regan is the senior manager of the easement program at the National Trust for Historic Preservation. Ross Bradford is senior associate general counsel for the National Trust.#Legal#easements