The Answers to the Preservation Easement Problem

As I noted a few submissions ago, I discovered that if a preservation restriction is to last beyond thirty years, it must have the approval of Mass Historic (The Commonwealth’s Historical Commission).


The news was very disturbing in that a property owner may begin the effort of preserving the inside and outside of their home to whatever degree they wish only to have someone in the future renege on it!     If you love an historic home, you realize at the outset that you are just a steward not the master.      Someone before you built and other owners oversaw their stewardship over the ages.      Now it’s your turn.      But a lousy steward you would be if imposing a preservation easement turned to naught in the future from a self-serving and uncaring new owner!      You put up the money; you endured the legal process only to find your efforts came to nothing?     I don’t think so!


So, I enquired to the important parties in the city and to the Big Boys at the Commonwealth and this is what they said,


Linda Smiley, Chair of the Newburyport Historical Commission:


Holding Preservation Restrictions is a rather new thing for the HC, so we are still learning about the best ways to do it.  Roughly, if a PR is done without MHC approval, it is only good for 30 years, but may have renewal clauses written into them.  If it is done thru MHC, it is perpetual.  However, many people balk at going the MHC route because it can take a very long time to get it completed.  Obviously, we would like them all to be forever, but sometimes it may be an unreasonable burden.  We are going to try to get more information from MHC regarding the length of time for the process so we can try to get all or at least most of them to go that route.    

Michael Steinitz, Director, Preservation Planning Division, Massachusetts Historical Commission:


Massachusetts General Laws Chapter 184, sections 31-33, establishes a legal statewide framework for their conveyance, recording and enforcement for the public benefit.  Under Chapter 184, the Massachusetts Historical Commission must approve all preservation restrictions, and for those held by a charitable corporation or trust, the municipality in which the property is located must also approve the restriction.  


Sarah White, President, Newburyport Preservation Trust, went right to the point:


Yes, if preservation easements are going to be put on a property as part of a public process – planning board, NHC or zoning board decision – , the only way that the preservation easement can remain in perpetuity is if it is approved by the Massachusetts Historical Commission.  They do approve them, but often need a lot of urging – they are very understaffed and have stacks of them to go through.  People can put restrictions on their properties in their deeds and most people think that just writing something in their deed is enough to protect it forever, but such a route only lasts a max of 30 years and in some cases only through one property transfer.


Now, if a preservation restriction is done by a property owner through an organization such as Historic New England that is a different story.  HNE owns the restriction forever, no MHC involvement needed.  Essentially, in the case of an HNE restriction, the property owner has legally transacted a portion of their property to HNE which essentially owns those portions of the property at that point.  As you likely know, the property owner must provide a monetary amount to NHE as well which pays for personnel to check on the portions of the property under the restriction on at least a yearly basis, monitor property transactions, pay for lawyers to litigate if the preservation restriction is violated.  To do this, they need $$, which is why a monetary donation must be made at the point of signing over portions of the property to be protected.  HNE works a long time with each property owner to create the best possible agreement and come up with different payment options for the monetary donation made to HNE.


She also said that the Preservation Trust, though authorized by the City to hold preservation easements, is not yet in a position to hold such restrictions.     I figure because you have to hire enforcement personnel that monitor yearly, keep detailed records and hold large sums of money for that purpose.     


I personally hope it will get to that point.     As a poor preservationist, I have found Historic New England extremely expensive.   


In the meantime, the best bet is to give the preservation easement to the City via the Historical Commission and then begin the arduous but well-worth-the-effort of making sure Mass Historic gives final approval.


-P. Preservationist


About P. Preservationist

Dedicated to the Enrichment & Preservation of Newburyport
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