Easements, Covenants, and Preservation Agreements

Preservation easements may be called a "covenant" or "restriction," depending on jurisdiction. Regardless of what the document is called, a preservation easement will be recorded with the property title and is a required part of all development (construction) grants, including projects with ground-disturbing archeological work. A key term of your grant agreement is that you will agree to assume, after the completion of the project, the total cost of continued maintenance, repair, and administration of the grant-assisted property in a manner satisfactory to the Secretary of the Interior. Accordingly, recipients awarded funds for the physical preservation of a historic site must sign a preservation covenant or easement with the State Historic Preservation Office (SHPO) for the state in which the site is located or with a nonprofit preservation organization acceptable to and approved in writing by the NPS.

A draft covenant/easement must be submitted to the NPS for review within one calendar year of the date a grant agreement is signed. Following the completion of all grant-assisted work, the preservation covenant/easement must document the grant-assisted condition of the site and the character-defining features. The covenant/easement must then be executed by registering it with the deed of the property. A certified copy of the executed covenant/easement must be submitted to the NPS prior to the end of the award period of performance.

In brief, grantees undertaking development projects are required to place an easement (also called a covenant) on the entire property in order to protect the grant-assisted work. These requirements are described more fully in the Historic Preservation Fund Grants Manual. Development projects include both construction, sometimes referred to as "bricks and mortar" work, and any ground-disturbing activity. Other grant programs, like Save America's Treasures, have had different required easement terms. In addition, some easement-holding organizations may require different terms as a condition of holding the easement; for example, some states will only hold easements in perpetuity.

The minimum required term for easements executed under all grant programs is outlined below. The term of the easement is based upon the amount of Federal grant funds received. Some jurisdictions may refer to the easement as a covenant or, in lieu of an easement, require a covenant. Regardless of the name, the minimum term limits below still apply and the document must be recorded on the property deed. Costs associated with the preparation and filing of the preservation agreement, covenant, or easement are eligible to be charged to your grant.

Model Easement

A model easement that meets minimum grant requirements is available below; however, it will need to be modified to meet local, state, or tribal requirements.

Easement, Covenant, or Preservation Agreement Duration

All grantees should note that NPS is revising the easement, covenant, and preservation agreement requirements for grants effective October 1, 2020. Please carefully review the tables below along with your grant agreement. The following easement, covenant, or preservation agreement requirements apply to all competitive grants (also called project grants) and all formula grants. The competitive grant programs include African American Civil Rights, History of Equal Rights, Save America's Treasures, Tribal Heritage Grants, Paul Bruhn Historic Revitalization Grants Program, and Historically Black Colleges & Universities grant programs. The term (duration) of the preservation covenant/easement is dependent on the amount of assistance the historic property receives.

• If the historic property is not currently protected by a preservation covenant/easement, a preservation covenant/easement must be executed for a term as given in the table below per the amount of funding awarded.
• If the historic property is currently subject to a preservation covenant/easement that meets the minimum federal preservation requirements, an extension must be executed for an additional duration to meet the requirements of the new funding awarded. Required term is identified in the table below. For example, if a property had 10 years remaining on a previous 20-year easement, and receives $300,000 in HPF funding, an amendment to add 15 years would be required.
• If the historic property is currently protected by a perpetual or other preservation covenant/easement that meets or exceeds the requirements of this grant program as determined by the NPS, no additional duration or restrictions are necessary
• awards to SHPOs and THPOs should follow the easement schedule in the HPF Grant Manual

Model Easement

This is a model easement (covenant) provided to serve as a basis for the easement or covenant that may be required by the terms of your grant agreement. You should not complete this document without modifying it to conform with state, tribal, or local law.

Within the context of the easement document, the words "grantor" and "grantee" have a special meaning. When speaking about your grant from the National Park Service, your organization may be referred to as the "grantee"; however, for the purposes of an easement grantor and grantee refer to the organization "giving" the easement to the organization that is said to "hold" the easement. Your organization becomes the grantor because you are assigning certain rights and privileges to another organization. This second organization that holds the easement is described as the grantee as they "receive" these rights and privileges.

Sample Preservation Easement/Covenant

for a Historic Preservation Fund Grant to a Historic Subject Property
(Covenant may be substituted for Easement where deemed necessary throughout the document)

INTRODUCTION. This conservation easement agreement is made the Date day of Month, 20 Year, between Organization, as GRANTOR of a conservation easement (hereafter referred to as the “Grantor”), and the State Historic Preservation Office/Other, as GRANTEE of the conservation easement (hereafter referred to as the “Grantee”). This conservation easement agreement is entered under State Law/Regulation for the purpose of preserving the Name of Subject Property, a building that is important culturally, historically, and/or architecturally.

1. The Subject Property. This agreement creates a conservation easement in real estate legally described in Exhibit A. The Subject Property is the site of the Name of Subject Property, located at Street Address, City, County, & State (hereafter referred to as the “Subject Property”).
2. Grant of conservation easement. In consideration of the sum of $Grant Amount received in grant-in-aid financial assistance from the National Park Service of the United States Department of the Interior, the Grantor hereby grants to the Grantee a conservation easement in the Subject Property for the purpose of assuring preservation of the Subject Property.
3. Easement required for Federal grant. This conservation easement is granted as a condition of the eligibility of the Grantor for the financial assistance from the National Park Service of the United States Department of the Interior appropriated from the Historic Preservation Fund for the HPFGrant Program Name.
4. Conditions of easement:
   1. Duration. This conservation easement is granted for a period of insert number of years (##) years commencing on the date when it is filed with the ­County County Recorder, in the State of State, in the United States of America.
   2. Documentation of condition of the Name of Subject Property at time of grant of this easement. In order to make more certain the full extent of Grantor’s obligations and the restrictions on the Subject Property, and in order to document the nature and condition of the Subject Property, including significant interior elements in spatial context, a list of character-defining materials, features, and spaces is incorporated as Exhibit “B” at the end of this agreement. The Grantor has provided to the Grantee architectural drawings of the Subject Property. To complement Exhibit “B”, Grantee and/or the Grantor personnel have compiled a photographic record, including photographer’s affidavit, black and white photographs and negatives, or electronic image files saved as high resolution images, photograph logs, and a keyed location map. The Grantor agrees that the nature and condition of the Subject Property on the date of execution of this easement is accurately documented by the architectural drawings and photographic record, which shall be maintained for the life of this easement in the Grantee’s conservation easement file for the Subject Property.
   3. Duty to maintain the Subject Property. The Grantor agrees to assume the cost of continued maintenance and repair of the Subject Property so as to preserve the architectural, historical, and/or archeological integrity of the Subject Property and its materials to protect those qualities that made the Subject Property eligible for listing in the National Register of Historic Places (or a Subject Property contributing to the significance of a National Register listed Historic District) throughout the effective date of this Easement.
   4. Restrictions on activities that would affect historically significant components of the Subject Property. The Grantor agrees that no demolition, construction, alteration, remodeling, or any other activity shall be undertaken or permitted to be undertaken on the Subject Property which would affect historically significant exterior features or interior spaces identified as significant in Exhibit “B.” Exterior construction materials, architectural details, form, fenestration, scale, and mass should not be adversely affected nor the structural soundness or setting altered without prior written permission of the Grantee affirming that such reconstruction, repair, refinishing, rehabilitation, preservation, or restoration will meet The Secretary of the Interior’s Standards for the Treatment of Historic Properties (hereinafter referred to as the “Standards”).
   5. Restrictions on activities that would affect archeological resources. The Grantor agrees that no ground disturbing activity shall be undertaken or permitted to be undertaken on the Subject Property which would affect historically significant archeological resources identified in Exhibit ”A” without prior written permission of the Grantee affirming that such work will meet The Secretary of the Interior’s applicable Standards for Archeology and Historic Preservation.
   6. Maintenance of recovered materials. The Grantor agrees to ensure that any data and material recovered will be placed in a repository that will care for the data in the manner prescribed in the applicable Standards for Archeology and Historic Preservation or will comply with the requirements of the Native American Graves Protection and Repatriation Act, and with 36 CFR 79 and 43 CFR 10.
   7. Public access. The Grantor agrees to provide public access to view the grant-assisted work or features no less than 12 days a year on an equitably spaced basis. The dates and times when the Subject Property will be open to the public must be annually published and provided to the Grantee. At the option of the Grantor, the relevant portions of the Subject Property may also be open at other times in addition to the scheduled 12 days a year. Nothing in this agreement will prohibit a reasonably nondiscriminatory admission fee, comparable to fees charged at similar facilities in the area.
   8. Right to inspect. The Grantor agrees that the Grantee, its employees, agents and designees shall have the right to inspect the Subject Property at all reasonable times, with twenty-four hours written notice, in order to ascertain whether the conditions of this conservation easement agreement are being observed. However, in the case of any natural or man-made disaster or imminent endangerment to the Subject Property the easement holder shall be granted access to the Subject Property with no prior notice.
   9. Anti-discrimination. The Grantor agrees to comply with Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d), the Americans with Disabilities Act (42 U.S.C. 12204), and with Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). These laws prohibit discrimination on the basis of race, religion, national origin, or disability. In implementing public access, reasonable accommodation to qualified disabled persons shall be made in consultation with the Grantee (or State Historic Preservation Office if another organization is holding the easement).
   10. Easement shall run with the land; conditions on conveyance. This conservation easement shall run with the land and be binding on the Grantor, its successors, and assigns. The Grantor agrees to insert an appropriate reference to this easement agreement in any deed or other legal instrument by which it divests itself in part or in whole of either the fee simple title or other lesser estate in the Subject Property, the Subject Property, or any part thereof.
   11. Casualty Damage or Destruction. In the event that the Subject Property or any part of it shall be damaged or destroyed by fire, flood, windstorm, earth movement, or other casualty, the Grantor shall notify the Grantee in writing within 14 calendar days of the damage or destruction, such notification including what, if any, emergency work has already been completed. No repairs or reconstruction of any type, other than temporary emergency work to prevent further damage to the Subject Property and to protect public safety, shall be undertaken by the Grantor without the Grantee’s prior written approval indicating that the proposed work will meet the Standards. The Grantee shall give its written approval, if any, of any proposed work within 60 days of receiving the request from the Grantor. If after reviewing the condition of the Subject Property, the Grantee determines that the features, materials, appearance, workmanship, and environment (or setting) which made the Subject Property eligible for listing in the National Register of Historic Places have been lost or so damaged that its continued National Register listing is in question, the Grantee will notify the Keeper of the National Register (or the SHPO if the Grantee is not the State) in writing of the loss. The Keeper of the National Register will evaluate the findings and notify the Grantee in writing of any decision to remove the Subject Property from the National Register. If the Subject Property is removed, the Grantee will then notify the Grantor that the agreement is null and void. If the damage or destruction that warrants the properties removal from the National Register is deliberately caused by the gross negligence or other actions of the Grantor or successor owner, then the Grantee will initiate requisite legal action to recover, at a minimum, the Federal grant funds applied to the Subject Property which will then be returned to the U.S. Government.
   12. Enforcement. The Grantee shall have the right to prevent and correct violations of the terms of this conservation easement. If the Grantee, upon inspection of the Subject Property, finds what appears to be a violation, it may exercise its discretion to seek injunctive relief in a court having jurisdiction. Except when an ongoing or imminent violation will irreversibly diminish or impair the cultural, historical and/or architectural importance of the Subject Property, the Grantee shall give the Grantor written notice of the violation and allow thirty (30) calendar days to correct the violation before taking any formal action, including, but not limited to, legal action. If a court, having jurisdiction, determines that a violation exists or has occurred, the Grantee may seek to obtain an injunction to stop the violation, temporarily or permanently. A court may also issue a mandatory injunction requiring the Grantor to restore the Subject Property to a condition that would be consistent with preservation purposes of the grant from the National Park Service. In any case where a court finds that a violation has occurred, the court may require the Subject Property to reimburse the Grantee and the­ State Attorney General for all the State’s expenses incurred in stopping, preventing, and/or correcting the violation, including, but not limited, to reasonable attorney’s fees. The failure of the Grantee to discover a violation or to take immediate action to correct a violation shall not bar it from doing so at a later time.
   13. Effective date; severability. This conservation easement shall become effective when filed by the Grantor in the Office of the Recorder of County County, State, with a copy of the recorded instrument provided to the Grantee for its conservation easement file. If any part of this conservation easement agreement is held to be illegal by a court, the validity of the remaining parts shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the conservation agreement does not contain the particular part held to be invalid.
   14. Amendments. The parties may by mutual written agreement jointly amend this conservation easement, provided the amendment shall be consistent with preservation purpose of this conservation easement and shall not reduce the regulatory controls listed in the conditions of this conservation easement. Any such amendment shall not be effective unless it is executed in the same manner as this easement, refers expressly to this easement, and is filed with the County County Recorder.

   This instrument reflects the entire agreement of Grantor and Grantee regarding the subject easement. Any prior or simultaneous correspondence, understandings, agreements, and representations are null and void upon execution of this agreement, unless set out in this instrument. In witness whereof, Grantor and Grantee have set their hands under seal on the days and year set forth below.
   

   Grantor: Name of Grantor
   By: Name of Individual
   Name and Title

   STATE OF ______, _______________ COUNTY, S.S.
   On this Date day of Month, 20 Year, before me the undersigned, a Notary Public for said State, personally appeared Name of Person, to me personally known, who stated that he is Title and Organization, that no seal has been procured by said corporation, and that the foregoing instrument was signed on behalf of said corporation by authority of its Board of Directors, and that as such officer, he acknowledged that he executed the foregoing instrument as his voluntary act and the voluntary act of the corporation.

   Signature of Notary

   Grantee: Name of Grantee
   By: Name of Individual
   Name and Title

   STATE OF ________, __________ COUNTY, S.S.
   On the Date day of Month, 20 Year, before me, a Notary Public for said State, personally appeared Name of Person, who stated that he is the duly appointed and actively serving Title and Organization, and that he executed the foregoing conservation easement agreement as his voluntary act and as the voluntary act of the State Historic Preservation Office [or other organization].

   Signature of Notary

   Exhibit A to the Conservation Easement Agreement

   Legal description of the Subject Property as found in the property deed

   Exhibit B to the Conservation Easement Agreement

   Baseline Documentation

   Subject Property Name, City, State

   To remain eligible for listing on the National Register of Historic Places, a Subject Property must be able to convey its significance. The following character-defining materials, spaces, and features have been identified as those that help convey the significance of Subject Property name. Also current photo documentation and the narrative of the National Register nomination must be attached to the baseline documentation.

   Significant Character-Defining Interior Spaces and Features

   • Insert list of character-defining interior spaces

   Significant Character-Defining Exterior Spaces and Features

   • Insert list of character-defining exterior spaces

   Exhibit C to Conservation Easement Agreement

   Written Documentation of the Signatories' Authority to Sign for and Legally Bind their Organization

   RESOLUTION OF THE BOARD OF DIRECTORS OF Insert Grantor Name Here

   
   RESOLVED, that INSERT GRANTOR NAME HERE, a INSERT STATE non-profit corporation [change as appropriate] (the “Grantor”) shall execute a conservation easement with INSERT GRANTEE NAME HERE, the INSERT STATE State Historic Preservation Office (the “Grantee”). This conservation easement will be entered under STATE LAW/REGULATION for the purpose of preserving the NAME OF SUBJECT PROPERTY, a building that is important culturally, historically, and architecturally.

   RESOLVED, that INSERT SIGNATOREE to the EASEMENT’S NAME as INSERT TITLE of INSERT GRANTOR NAME HERE, is authorized, directed, and empowered to take such action and execute and deliver such document in such form as he or she deems to be in the best interests of INSERT GRANTOR NAME HERE, including without limitation the execution and delivery of a conservation easement.

   I, INSERT CHAIRMAN’S NAME HERE, Chairman of INSERT GRANTOR NAME HERE, do hereby certify that the foregoing is a full, true and correct copy of the resolution of the Board of Directors of said Corporation, duly and regularly passed by the Board of Directors of said Corporation in all respects as required by law, and by the By-Laws of said Corporation, on the Date day of Month 20 Year, at which time a majority of the Board of Directors of said Corporation was present and voted in favor of said resolution.

   Date: Date
   By: INSERT GRANTOR NAME HERE

   By: Chairman's Signature
   INSERT CHAIRMAN’S NAME HERE, Chairman