In VA, there is a historic district that consists of some 14,000 acres, upon which defendant has a home. The land was declared a National Historic Landmark in 1974. The original owners granted easements to a non-profit group over their land. The easement was listed in gross in the written document. The non-profit then conveyed their assigned easement to the US government. Defendant’s home is on the easement at issue, which is now administered by the National Park Service. Defendant’s home, according to the easement “… will be maintained and preserved in its present state as nearly as practicable, though structural changes, alterations, additions, or improvements as would not in the opinion of the Grantee fundamentally alter its historic character…” Defendant wants to renovate his porch through remodeling. Defendant argues that when the deed was granted to the non-profit, VA law did not recognize negative easements, which invalidates the government’s authority to restrict his activity thereon.
Under VA law, whether “a conveyance of a negative easement in gross by a private property owner to a private party for the purpose of land conservation and historic preservation be valid?”
“… an easement in gross sometimes called a personal easement is an easement which is not appurtenant to any estate in land, but in which the servitude is imposed upon land with the benefit thereof running to an individual.” These have historically been disfavored at law.
No, affirmed. “Blackman’s contention suggests an analysis devoid of due consideration of the pertinent statutory and constitutional provisions in effect in the commonwealth long before the 1988 enactment of the VCEA.” Since 1962, VA courts have recognized that easements in gross can be disposed of through will or by a deed. In fact, the VA legislature recognized and amended code as early as 1962 for conservation of historic buildings and landmarks. There were agencies even assigned to this task in 1966, which predates defendant’s purchase of his home. It wasn’t under 1988 that VA enacted the Virginia Conservation Easement Act, which explicitly recognized conservation easements. Negative easements in gross, therefore, were recognized in law prior to the VCEA. The VCEA simply facilitated and codified preexisting practice, providing tax exemptions for defined charitable organizations working to preserve historic districts.