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Model Language for Title Restrictions To Use in Transfer of Historic Properties

 

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This material is not in Federal Projects and Historic PlacesThe following language was far too lengthy to include in the textbook from which the standard stipulations are derived. It is based on language developed for the Advisory Council on Historic Preservation's education and training program, as adapted by the author.

 Standard title restrictions stipulation
  Index

Introduction

Protective title restrictions are notoriously difficult to enforce. It is imperative that they be designed with the assistance of an attorney knowledgeable in the real estate laws of the jurisdiction within which the transfer is to take place. The provisions of such laws vary widely from place to place.

Following is an EXAMPLE of a restriction, in the form of a covenant. It consists of a "shell" covenant with several different kinds of "fillings" designed for use with different kinds of properties. DO NOT FOLLOW THIS EXAMPLE SLAVISHLY. BE SURE YOUR RESTRICTIONS ARE CONSISTENT WITH, AND ENFORCEABLE UNDER, THE REAL ESTATE LAWS OF THE STATE AND/OR LOCAL JURISDICTION. Be sure to attach the restriction to the MOA, PA, or other agreement document, and be sure to identify who will hold and enforce the restriction (in the below model, the "Covenantee."

Model Covenant

WHEREAS, the Historic Preservation Trust of Western Washafornia (hereinafter "Covenantee") is a non-profit corporation under Section 501 (c) (3) of the Internal Revenue Code of 1986 as amended, and

WHEREAS, Covenantee is authorized to accept and easements and covenants to protect places significant in local history and culture under the provisions of Title III, Section 776(m)(14) of the Washafornia Public Resources Code (hereinafter, "Title III," and

WHEREAS, the Federal Bureau of Fish Housing (hereinafter, "Bureau"), by its grant and conveyance of certain property rights hereunder to Big Ditch Development Corporation, Inc. (hereinafter "Covenantor") wishes to transfer to Covenantee hereinabove designated preservation covenants in and to that Property which is the subject of this conveyance (hereinafter the "Property"), and Covenantor, for itself and its heirs, administrators, devisees, successors, and assigns is willing to acquire and accept the Property subject to such covenants; and

WHEREAS, the administration and enforcement of these preservation covenants by Covenantee will assist in preserving the historic and cultural values of the Property;

NOW THEREFORE, Covenantor hereby covenants on behalf of itself and its heirs, administrators, devisees, successors, and assigns with Covenantee at all times to be bound by the following restrictions:

Here insert property-specific restrictions, such as:

REVISE AND ADD AS APPLICABLE TO MODELS

#___. Covenantee shall be permitted by the Covenantor at all reasonable times to inspect the Property, (including its interior spaces, in order to ascertain if the above conditions are being observed. (14) where applicable, "Covenantor agrees that inspections may, at the discretion of Covenantee, include entry into the interior of the Structure." The right of inspection shall include the right to take photographs, make drawings, and prepare written descriptions of the Property for the purpose of documenting the appearance, condition, and uses of the Property at the time of inspection.

#___. In the event of a violation of these covenants, in addition to any remedy now or hereafter provided by law, Covenantee may, following reasonable notice to Covenantor, institute suit to enjoin said violation and to require, at the expense of Covenantor, the restoration of the Property to the condition and appearance required under these covenants. The successful party shall be entitled to recover all costs or expenses incurred in connection with such a suit, including all court costs and attorney's fees. 

#___. Covenantor agrees that Covenantee may at its discretion, without prior notice to Covenantor, convey and assign all or part of its rights and responsibilities contained herein to a unit of federal, state, or local government or to a local, state, or national organization which is qualified under Title III and any successor provisions or under federal law to accept such rights and responsibilities.

#___. These covenants shall be deemed to run with the land as covenants at law and equitable servitude, and extend to and are binding on Covenantor and Covenantee, and their respective heirs, administrators, devisees, successors, and assigns. The words "Covenantor" and "Covenantee" shall include all such persons, agencies, entities, and the like. The restrictions, stipulations, and covenants contained herein shall be inserted by Covenantor verbatim in any deed or other legal instrument by which it divests itself of either the fee simple title or any other lesser estate in the Property or any part thereof.

#___. The failure of Covenantee to exercise any right or remedy granted under this instrument with respect to any particular violation of these covenants shall not have the effect of waiving or limiting the exercise of such right or remedy with respect to the identical (or similar) type of violation at any subsequent time or the effect of waiving or limiting the exercise of any other right or remedy.

#___. The invalidity or unenforceability of any provision of this instrument shall not affect the validity or enforceability of any other provision of this instrument or any ancillary or supplementary agreement relating to the subject matter hereof.

Optional provisions for historic buildings and structures

#___. Without the express prior written approval of Covenantee, signed by a fully authorized representative thereof, Covenantor shall not undertake or permit to be undertaken any of the following actions:

 

Note: Following are examples only

  • increase or decrease the height of the building
  • adversely affect the structural integrity of the building 
  • make any changes or alterations in the appearance or condition of the foyer, elevator lobbies, or windows, or the decorative wainscot in Room 73B, including the alteration, partial removal, construction, remodeling, other physical or structural change, and any change in color or surfacing 
  • erect anything which would prohibit the east façade from being visible from street level, except for a temporary structure during any period of approved alteration or restoration
  • erect, construct, or move anything that would encroach on the open land area surrounding the building or interfere with a view of the building or be incompatible with the historic or architectural character of the building
  • erect, construct, or move any building or structure, including but not limited to satellite receiving dishes, camping accommodations and mobile homes on the plaza adjacent to the building to the east hereafter, except for temporary structures required for the maintenance or rehabilitation of the building, such as construction trailers 
  • display signs, billboards, awnings or advertisements on the building; provided, however, that Covenantor may, with prior written approval from and in the sole discretion of Covenantee, erect such signs or awnings as are compatible with the preservation and conservation purposes of this covenant and appropriate to identify the building and any activities carried out therein or in adjacent structures under Covenantor's control 
  • make any topographical changes to the grounds transferred to Covenantor with the building by this instrument, including but not limited to excavation, provided, however, that Covenantor may, with prior written approval from and in the sole discretion of Covenantee, make such topographical changes as are consistent with and reasonably necessary to promote the preservation and conservation purposes of these covenants
  • dump ashes, trash, rubbish or any other unsightly or offensive materials on said grounds 
  • subdivide or convey the building and said grounds except together as a unit,
  • obstruct the substantial and regular opportunity of the public to view the building from adjacent publicly accessible areas such as public streets

Optional provisions for historic designed landscapes

#___. Without the express prior written approval of Covenantee, signed by a fully authorized representative thereof, Covenantor shall not undertake or permit to be undertaken any of the following actions:

Note: Following are examples only

  • make any changes or alterations in the appearance or condition of the Garden of Peace, the Toad Pond, or the Encircling Walks as shown on Pages 35-38 of the document entitled "Styx and Stones: Key Elements the Charon Memorial Garden" dated May 17, 2003, including alterations in land use, topography, circulation, or plantings, other than those required to maintain the existing appearance of the Charon Memorial Garden. 
  • erect anything which would prohibit the Portal of Eternity from being visible from street level, except for a temporary structure during any period of approved alteration or restoration. 
  • erect, construct, or move anything that would encroach on the Charon Memorial Garden and/or interfere with a view of the Portal of Eternity, Garden of Peace, Toad Pond, or Encircling walks, or be incompatible with the historic or visual character of the Charon Memorial Garden.
  • erect, construct, or move any building or structure, including but not limited to satellite receiving dishes, camping accommodations and mobile homes on the Charon Memorial Garden hereafter, except for temporary structures required for the maintenance or rehabilitation of the Garden, such as construction trailers. 
  • display signs, billboards, awnings or advertisements on the Charon Memorial Garden, provided, however, that Covenantor may, with prior written approval from and in the sole discretion of Covenantee, erect such signs or awnings as are compatible with the preservation and conservation purposes of this easement and appropriate to provide directions to prominent graves and other landmarks and to announce funerals and other activities on the Garden grounds or elsewhere. 
  • make any topographical changes to the Charon Memorial Garden, including but not limited to excavation for purposes other than interment, provided, however, that Covenantor may, with prior written approval from and in the sole discretion of Covenantee, make such topographical changes as are consistent with and reasonably necessary to promote the preservation and conservation purposes of these covenants. 
  • dump ashes (other than ashes produced by the cremation of bodies and body parts), trash, rubbish or any other unsightly or offensive materials on the grounds of the Charon Memorial Garden. 
  • subdivide or convey the Charon Memorial Garden except as a unit. 
  • obstruct the substantial and regular opportunity of the public to view the Charon Memorial Garden in general and the Portal of Eternity in particular from adjacent publicly accessible areas such as public streets.

Optional provisions for archeological sites

#___. Except as hereinafter provided, Covenantor shall keep the Sandy Sondage Site (Site), as described and mapped in the report entitled: "A Deep Subject: the Sandy Sondage Site" (Marshall and Towne 1999; hereinafter the Deep Report) in its existing state in order to preserve its archeological value, and to that end, except as otherwise provided herein, Covenantor shall neither perform nor permit others to perform any of the following within the boundaries of the site as shown in Figure 17A of the Deep Report:

Note: Following are examples only

  • placement of any earth, gravel, or similar substance on, above or below the ground. 
  • excavation or removal of any earth material, plant material, mineral substance or other substance or material, (except archeological resources retrieved pursuant to a research design approved in writing by Covenantee. 
  • construction of any building or placement of any other structure on, above or below the ground surface. 
  • conduct of any field investigation for any purpose, except field surveys and subsurface investigations authorized in writing by Covenantee;" 
  • any other activity which by disturbing, altering or otherwise affecting the existing surface or subsurface of the Site that would be detrimental to the appropriate preservation of the Site.

#___. Notwithstanding the above, disturbance of the ground surface or any other thing may be undertaken or permitted to be undertaken on the with the express prior written permission of Covenantee, signed by a fully authorized representative thereof. Should Covenantee require, as a condition of the granting of such permission, that Covenantor or the recipient of such permission conduct archeological data recovery operations or other activities designed to mitigate the adverse effect of the proposed activity on the Site, Covenantor shall ensure that such activities are carried out at no cost to Covenantee. Covenantor and Covenantee shall ensure that any archeological data recovery carried out is consistent with the Secretary of the Interior's Standard Guidelines for Archeological Documentation (48 FR 44734-37), and such other standards and guidelines as Covenantee may specify, including but not limited to standards and guidelines for research design, field work, analysis, preparation and dissemination of reports, disposition of artifacts and other materials, consultation with Native American or other organizations, and re-interment of human remains.

#___. Covenantor shall make every reasonable effort to prohibit any person from vandalizing or otherwise disturbing the Site, and shall promptly report any such disturbance to Covenantee.

Note: Following is for use where release from restrictions is provided based on the future conduct of data recovery:

#___. If Covenantor conducts and completes a study of the Sandy Sondage Site and retrieval of archeological resources and data and delivery of same to Covenantee or Covenantee's designee, all under the supervision of, and to the satisfaction of, Covenantee, Covenantee shall promptly hold a public hearing as specified in Title III, Section AB-45x of the Washafornia Public Resources Code, and should such hearing reveal to Covenantee no bar to doing so, execute a valid certificate of release of this Preservation Restriction and deliver said certificate of release in recordable form to Covenantor.

Optional provisions for traditional cultural properties

#___. Except as hereinafter provided, Covenantor shall keep the Origin Cave, as described and mapped in the records of the Motomak Tribe and summarized in Covenantor's geographic information system (GIS), in its existing state in order to preserve its cultural value to the Motomak people, and to that end, except as otherwise provided herein, Covenantor shall neither perform nor permit others to perform any of the following:

Note: Following are examples only

  • interrupt, interfere with, or discourage access to the Origin Cave by members of the Motomak Tribe and their guests.
  • erect, construct, or move anything that would be visible from the mouth of the Origin Cave, without the express written permission of the Motomak Tribal Council and Covenantee.
  • display signs, billboards, awnings or advertisements that would be visible from the mouth of the Origin Cave; provided, however, that Covenantor may, with prior written approval from and in the jointly exercised discretion of Covenantee and the Motomak Tribal Council, erect such signs or awnings as are compatible with the preservation and conservation purposes of this easement and appropriate to discourage trespass on, damage to, or inappropriate public use of the Origin Cave and its vicinity.
  • make any public announcement of activities of the Motomak Tribe that are planned to take place at Origin Cave, without the express written permission of the Motomak Tribal Council.
  • place any earth material, gravel, or other material on, above or below the ground within view from the mouth of Origin Cave.
  • excavate or remove any earth material, plant material, mineral substance or other substance or material, except by Motomak Tribal members for purposes of medicine gathering or other cultural purposes.
  • construct any building or place any other structure on, above or below the ground surface, except sweatlodges and other temporary structures built by Motomak religious or cultural practitioners.
  • conduct archeological or anthropological field studies for any purpose at Origin Cave, except when Covenantee certifies in writing that permission for such a study has been given by the Motomak Tribal Council.
  • any other activity which by disturbing, altering or otherwise affecting the Origin Cave or its vicinity would be detrimental to the appropriate preservation of Origin Cave's traditional cultural value.

#___. Covenantor shall make every reasonable effort to prohibit any person from vandalizing or otherwise disturbing Origin Cave, and shall promptly report any such disturbance to Covenantee and the Motomak Tribe.

Optional provisions for non-designed cultural landscapes

#___. Except as hereinafter provided, Covenantor shall keep the Gigantic Green Valley (Valley), as described and mapped in the document entitled "Gigantic Green Valley Cultural Landscape Assessment" and dated February 15, 2004, in its existing state in order to preserve its cultural value and visual character, and to that end, except as otherwise provided herein, Covenantor shall neither perform nor permit others to perform any of the following:

Note: Following are examples only

  • alter current agricultural practices in the Valley, without the express written permission of Convenantee based on Covenantor's representation that such changes are necessary to maintain the economic viability of farming in the Valley.
  • demolish or remove any building or structure standing in the Valley on the date this instrument is executed, except for the pink stucco building at 479 Gigantic Green Valley Road, which shall be demolished, removed, and the land whereon it stood treated with salt at the first opportunity.
  • widen, pave, or otherwise improve Gigantic Green Valley Road, without the express written permission of Covenantee based on Covenantor's representation that such improvement is necessary to ensure safety and convenience of travel; Covenantor may, however, conduct routine road maintenance without such permission.
  • erect, construct, or move any building or structure within the Valley or on the surrounding hills that would be visible from the Valley without the express written permission of Covenantee; Covenantor may, however, erect or move such temporary facilities and equipment as are necessary in the conduct of routine agricultural operations.
  • interfere in any way with the conduct of the annual Gigantic Green Valley Bean Festival.
  • conduct any other activity which by disturbing, altering or otherwise affecting the agricultural character of the Gigantic Green Valley or the surrounding hills would be detrimental to the appropriate preservation of the Valley's cultural value.

#___. Covenantor shall make every reasonable effort to prohibit any person from vandalizing or otherwise disturbing buildings, structures, roadside markers, fences, corrals, and/or agricultural equipment in the Valley, and shall promptly report any such disturbance to Covenantee.

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