Preserving Perpetuity?: Exploring the Challenges of Perpetual Preservation in an Ever-Changing World

43 Environmental Law 941 (2013)

44 Pages Posted: 4 Feb 2014

Date Written: February 3, 2014


Over the past thirty years, preservation easements have permanently protected thousands of historic properties against insensitive alteration and even outright demolition. Despite the importance of these efforts, a perception has developed that the federal tax incentives subsidizing many of these donations serves only as a lucrative tax break for wealthy urban residents. In response to this criticism, the IRS has aggressively audited preservation easement donations – focusing on whether specific easement donations actually provide for perpetual protection. In a related vein, there are a growing number of external threats to the ability of preservation organizations to perpetually protect historic properties – particularly in the face of climate change and the seemingly endless barrage of recent natural disasters. There is, however, little scholarship or guidance for preservation easement organizations in how to respond or react when a property subject to a perpetual preservation easement is damaged or destroyed. This Article aims to fill this gap by exploring the legal and ethical considerations that inform and govern an organization’s response in such a scenario. Ultimately, the ability of easement-holders to responsibly respond to catastrophic events may prove vital in demonstrating the continued viability of preservation easements to protect vulnerable historic buildings and, in turn, preserve the perpetuity of this critical legal mechanism in a rapidly changing world.

Keywords: Historic Preservation Law, Land Use Law, Environmental Law, Preservation Easement, Conservation Easement

Suggested Citation

Phelps, Jess R., Preserving Perpetuity?: Exploring the Challenges of Perpetual Preservation in an Ever-Changing World (February 3, 2014). 43 Environmental Law 941 (2013). Available at SSRN:

Jess R. Phelps (Contact Author)

The Lyme Timber Company LP ( email )

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