Selling or Buying an Easement-Encumbered Property

Selling or buying an easement-encumbered property comes with a unique set of responsibilities of which buyers and sellers should be fully aware before contracting a property for sale. Buyer’s and seller’s agents should also be sure to fully understand the easement and its implications in a sale.

Sellers

Sellers of easement-encumbered properties must fully disclose information both to the Trust and to the prospective buyers. The seller’s (Grantor) role, as outlined in Recital J, Section 9 of the Trust’s standard easement agreement:

“Grantor shall promptly notify Grantee [the Trust] in writing of any proposed sale of the Premises. Grantor agrees to incorporate the terms of this Easement by reference in any deed or other legal instrument by which Grantor divests themselves of any interest in all or a portion of the Premises, including without limitation, a leasehold interest. The failure of Grantor to perform any act required by this paragraph shall not impair the validity of this Easement or limit its enforcement in any way …”

As described in the easement, the seller must inform the Trust that s/he has sold the property, so that the Trust can contact the new owners and update its easement stewardship files.

In addition to informing the Trust of property sales, sellers of the easement-encumbered properties need to expressly inform possible buyers of the easement. We highly recommend providing a copy of the recorded easement to the buyers. While the easement is a public document recorded in the local land records, and it should be reflected on a title search run by any buyer, it is important that buyers understand what the easement is and what it requires of them. The Trust also recommends that the sellers provide the buyers with copies of all stewardship records related to the easement, including Trust approvals for any work and annual monitoring correspondence.

Buyers

Buyers of easement-encumbered properties need to understand what owning such properties entails. If a buyer knows that the property is subject to an easement, s/he should contact the Trust to discuss the responsibilities of ownership and obtain a copy of the recorded easement. The easement will include a written and photographic baseline for the property, which buyers should compare to the current appearance and condition of the property to identify any discrepancies.

The Trust recommends that buyers ask the seller to provide them with copies of correspondence from the Trust, including annual monitoring letters and approvals for work. If a buyer cannot obtain copies of monitoring correspondence and work approvals from the seller, the Trust can provide a buyer with a statement as to whether or not the property was in violation of the easement as of the date of the most recent monitoring inspection. When ownership is transferred, resolution of any previously unidentified easement violations becomes the responsibility of the new owner. Any pending easement violations should be resolved prior to a transfer of ownership.

The easement remains in effect in perpetuity – forever. The current owner, whether the donor or not, is responsible for all duties assigned to the grantor by the easement. These include submittal of  Proposed Modification Requests to obtain Trust approval for work on the protected facades, scheduling of annual monitoring appointments, and compliance with Trust requests for regular maintenance work.

After a buyer purchases an easement-encumbered property, s/he should contact the Trust so that we may update our easement stewardship records and provide any additional information about the easement that was not provided at the time of the sale. We ask that owners contact us by phone or email, or send us a  New Owner Contact form to expedite future communication regarding easement stewardship.

Any tax benefits from the donation of the easement accrue only to the donor of the easement, as the donation is a one-time event despite the fact that it creates perpetual responsibilities on the part of the property owner. The Trust does not disclose any specific information regarding the value of an easement, or the ratio of the value to the overall property value, to parties not involved in the donation.

The Trust is a source of information and assistance to all parties involved in the sale/purchase of an easement-encumbered property, and encourages them to contact us with any questions or concerns.