A SUMMARIZATION OF
THE BRENNERMAN REPORT ON
A. Dean Knott
University of Florida
Preservation Law 601
To begin with this is tO be a summary only. It is
reccomended thas the entire report should be read for more
in depth knowledge and documentation, for each point brought
out in the report is well documented by statutes, cases,
easement documents, and other such data.
The first two chapters deal with (1) why should
there be easements and what are the terms used in making
up an easement, and (2) legislation from the 1906 Antiquities
Act to the 1966 historic preservation legislation. The
latter chapter includes segments of the bills specifically
applying to easements, or which could be used to apply
to the use of easements in pursuing the program outlined
in the statute.
The chapters which are the of the most major concern
are numbers III (Easement Experience), IV (Easements and
the Law), V (The Easement Instrument), VI (Tax Applications),
and VIII which gives reccomendations as to whether or
not easements could be used by the National Park Service
(NPS) to protect National Historic Landmarks (NHL).
Chapter III gives a wide range of examples of the
experience that federal, state, local, and private organizations
have had with easements. The most noted example of a bad
experience was what happened to the NPS in the 1930's while
negotiating easements along the Blue Ridge Parkway and
the Natchez Trace. The Blue Ridge Parkway had 2,500 acres
with easements and Natchex Trace had about 5,000. Both
projects were plauged with bad administration, and because
the individual state highway departments had negotiated the
easements, there was little understanding of the res-
pnsibilities of the owners or of the holder (NPS). For
the most part the easements prohibited signs, dumping,
new farm outbuildings, and limited the clearing of mature
trees and shrubs. Eventually the easements were traded for
"fee simple" or outright ownership of the area directly
next to the highways.
Since that time the NPS has engaged in other, more
successful,easements around various national parks in
Texas, Idaho, and Utah, which restrict land use, prohibiting
mining, industry, and commercial buildings, and limits
lumbering, and trailers. Other easements were acquired
around Civil War battlefields which allow low density and
agriculture but prohibit other uses. The easement at '
Vicksberg being the most unusual, because the local zoning
board governs the land use of the burdened land but the
easement is held by the NPS.
All the previous cases involve open space "senic"
easements, but there are also given cases of historic
open space easements. In both cases the eased land is in
relation to property around a historic property owned
by the holder of the easement. The historic open space easement
protects land around historic sites so they will retain
their continuity and the setting they have always had, the
particular case sited was at Colonial Jamestown. In
this case there was to be a bridge built within site of
the reconstruction of Jamestown where there had always
been farm land. Therefore, an easement was granted on
the proposed site of the bridge so it could not be built
but the land could continue to be farmed by the owner.
Also, since 1966, easements have been negotiated to help
fulfill the NPS's obligations under the provisions of
the historic preservation legislation to preserve historic
or culturally important structures, siting the Tudor Place
easement as an example.
Brenerman also tells of other agencies who successfully
use easements to achieve their goals. The U.S. Fish &
Wildlife agency holds easements on 500,000 acres of wildlife
habitat in the Dakotas, and has successfully defended
the legality of these easements in court, but there is
a lot less pressure to develop backwoods farmlands than
in more urbanized areas. In cases where the development
pressure is so great that the loss of the best use of
the land a historic property sits on might well constitute
a taking without just compensation.
On the state level Brennerman tells of easements that
are presently being negotiated by states on both sides
of the Missippi River, and that Wisconsin has been the
most successful in obtaining them. These are acquired in
fulfillment of a federal program, and thus has the importance e
of a federal program and federal law behind them.
At the local and private level, Charleston has
acquired facade easements and Savannah acquires properties
and retransfers it with deed restrictions. Pittsburg does
the same type of thing and in Missouri'a private historical
society (Jackson County Historical Soiety) granted the
state an easement on one of its properties for twenty.
years. In green Springs an easement on a Historic rural
residential district allows normal changes to be made
from an 18th century rural farms to a 20th century century
residentail area as long as no major alterations take
place. In Maine, the Maine Coast Heritage Trust (a
private organization) has negotiated easements for the
NPS and in Virginia a private organization holds easements
on properties designated landmarks by the state's historic
Brennerman sums up by making the following points:
1. Ideally, organizations holding the easements should
be close to the owners and the property for the
2. Inspection and management are very important
3. There is presently a great interest on the part
of land owners to sell easements.
4. However, enforcement of easements can be a problem
when the property changes hands.
*5. There are different easements for different
situations and different property laws.
6. Control can be obtained over property by easements
without laws and can help support historic districts.
In Chapter V, Brennerman covers the legal aspects of
easements. Because of the complexity of the topic, my
summary will be relatively simple as to encourage the reading
of the actual report, for this cannot be stressed enough.
Over all he says to remember that there are two types
of law; statutory law and common law (which is derived form
English common law), and that there are fifty differnet sets
of both types of laws, one for each state. Also, thereis the
federal statutory law and common law to consider. Now in
common law it is clear that if a holder of an easement
has property which benefits from the easement then the
two pieces of property (burdened and benefitting) are
"appurtenent" and the easement will "run" with the property
which is burdened. In other words, the burden of the easement
will pass from the original owner of the burdened property
to any and all future owners and heirs. However, if there is
no property which benefits from the easement (as in the case
of a society holding a facade easement on a historic
structure) then the easement is "in gross" and their is no
clear rule as to whether or not the easement will burden
the future owners, depending on the property laws of the
state in which the easement is held.. Other questions
raised are can the easement be assigned to other holders, and
can part of the easement, like the inspection responsibilities,
be signed over to other holders like state or local
To answer these questions and clear up the problems, then
one must have statutes which deal specifically with them.
Sixteen of the states have statutes dealing with easements;
nine have general ones, fourteen with tax breaks, and all
are restrictive. The different easements deal with
eligibility, assignment of easements, responsibilities of
the holders, and coordination with federal programs.
They are in three catagories:(a) specific open space and
historic preservation easements (Mass., Conn., N. Hampshire),
(b) authorization of various commissions and agencies to
acquire easements (Florida, N. Carolina)), and (c) mis-
cellaneous general statutes which touch on the possibility
of using easements.
Massachusetts and Conneticutt have statutes which
set out the specific definition of easements and the rights
of the owners and holders. Their laws also set up appeal
systems and protect other easements which might already
exist, and protect the historic easement from any adverse
laws. Several other states dod the same thing calling
it by different names. North Carolina sets up a state
commission to acquire easements and Florida sets up local
state commissions (only have power in their particular
district rather than over the entire state) which can
acquire easements; however, neither defines the easement
or answers any of the legal questions involved in its use.
Brennerman urges unification of the different states'
laws dealing with this subject, and alos asks criteria to
be set for a basis on which to decide what properties are'
eligible to have easeaments on them under the se new laws.
He also says that being on the National Register or a
National Landmark would be a basis for such a criteria.
On the federal level, he sites two cases involving
easements, though not historic preservation easements;
however he feels the results would apply to any type of
easement the federal government would hols, the U.S. vs.
Lake Miserd Realty Co. and the U.S. vs. Albrecht. Both
were decided in favor of the U.S., because in both cases
federal programs were being fullfilled and that federal
law applied over the particular states' law. This,therefore,
could work for the NPS in acquiring historic preservation
easements in accordance with the '66 legislation. However;
he goes on to say that these rulings would probably not
apply to local or state commissions trying to achieve the
same goals of the federal historic preservation program.
The fifth chapter deals with what should be included
in the easement instrument. Only the rights given and
set out are granted to the holder and the owner so the
document must be specific and carefully written. The
suggested inclusions are as follows;
1. Preamble-telling what is being done
2. Description of property
3. Standards of care and maintenance
4. Responsib ility for the care and maintenance
5. Approval of alteratins-who has it
6. Arbitration of disputes-who can
**7. Inspection rights
8. Exterior-documentation of what the easement covers
9. Interior- documentation of what the easement covers
10. Land use restrictions
11. Proceedure in case of total or partial (accidental)
12. Term-length of the easement
**13. Assignability-if it is possible and if itis then
to who can the easement be assigned?
14. Successors-if the easement will burden future
15. Public access-yes or no
16. Rights of first refusal to buy the property from
17. Obligations of the holder
In Chapter VI Brennerman tell us that proir to 1969
tax reforms, a gift of an easement was considered a charitable
contribution and therefore entitled to a deduction of the
appropriate amount, but since the reforms the gift had
to be an "undivided interest" which was (a) open space,
(b)easement, (c) in gross, and (d) in perpituity, and does
not specifically allow for historic preservation easements.
However, Brennerman feels that be a loose interpretation
of this statute, that historic preservation easements could
be included for eligibility for a federal income tax
At the state level and the local level practically
no consideration of easements on property is reflected
in the taxes on the persons income or on the owners
property taxes. As stated earlier, fourteen states
specifically allow for tax reductions. However, most do
not, execpt California, tell how or how much the easement
should reduce the value of the property and therefore its
taxes. Of course, circumstances and development pressures
change property values, but it is all based on a rather
inaccurate system of land apprasiers who for the most part
can only guess at the value of the property or an easement.
In the last chapter, Brennerman asks specifically
if easements should, not could because the legal authority
exists, be used to protect NHL's. He says yes, because
it would protect property frm actions by local and state
governments and from private citizens. However, he also
says that easements are but one tool to accomplish this.
Other methods are zoning, whih can be changed overnight,
by buying the property, rather expensive on a limited
budget, or by encouraging interested owners to keep and
maintain their property, which he feel s is the best
solution. At this point he advocated tax breaks (estate,
property and income) to aid the owners of historic properties.
However, there are problems with the use of easements.
First, who should hold the easement federal, state, or
local authorities. Most people feel that the NPS should
hold easements on NHL's, but since it is considered best
for the holder to be near the property for administration
purposes could the administration or even the entire
easement be assigned to state or local authorities, and
if it is should there be compensation for expenses incurred
during the administration? Also, what criteria should be
used for eligibiltiy to be considered for a historic
preservation easement? Brennerman feels these are real
questions which should be solved first before plunging
into an acquisition program.
Finally he suggests a criteria for selection of
properties to be eased and makes reccomendations. These
are as follows:
1. Easements should be acquired by donation or through
the grants-in-aid program
2. Only National Hitoric Landmarks and their surroundings
should be considered
3. Easements should be enforcable against the owners
and future owners
4. Easements should cover all aspects which make the
property eligible to be eased
5. The easement should be assignable to anyone the
6. The property would be accessible for inspection
7. The easement should not be accepted in the property
is not easily accessible to an office of the NPS under
8. Data on property and its value should be available
*9. If a property is in a historic district but is not
a Landmark the easement should not be accepted
unless the property relates to the protection of
the whole, if the district has no other means of
protection and the property contributes to the
continuity of the district.
10. The easement must satisfy public use and benefit
His reccomendations are as follows:
1. NPS should prepare farms and procedures to accept
easements and covenants and make arrangements to
administer the same through state and local agencies
or to assign the entire easement to these agencies.
2. A study of past experiences of owners of NHL's
Rueg ma t jnpN .the grants-in-aid program
3. Before a property should be added to the list of
NHL's of eased a study should be made of the
provisions for care and maintenance of the property.
4. A study by the NPS should be made of las and statutes
in different states to check their validity.
5. The NPS should seek authority for a larger per
centage of matching grants for properties on
the National Register and eligible as a NHL if
they (1) have an easement and (2) if they are
in a historic district as an incentive for the
owner to accept the restrictions.
6. The NPS should push for uniformity and clarification
of the property laws in all the states.