Distinguishing Affirmative and Negative Easements - dummies

Distinguishing Affirmative and Negative Easements

By Alan R. Romero

An easement is a right a landowner intentionally or unintentionally gives to another to use or to control the use of her land in some way, without possessing it (which is why it’s often described as a nonpossessory interest in land).

Easements, along with covenants, are known as servitudes. A servitude is a general term for nonpossessory legal rights in another person’s land. The land that is subject to an easement is called the servient tenement or servient estate; the owner may be called the servient tenant.

The owner of the easement may be called the dominant tenant. If the easement serves other land in some way, the benefited land is called the dominant tenement.

Easements always burden some land, so there’s always a servient tenement. But easements might not benefit any dominant tenement; they may simply benefit a person. Such an easement is called an easement in gross.

Most easements are affirmative easements, meaning they give a nonowner the right to use the owner’s land in some way. Here are a few examples of affirmative easements:

  • The right to cross the owner’s land to get to and from neighboring property (often called a right-of-way)

  • The right to install and maintain power lines, water pipes, and sewage systems on and under the owner’s land

  • The right to hunt, fish, or use recreational facilities on the owner’s land

Parties may also create negative easements, which give the easement holder the right to restrain or control the use of the owner’s land in some way. Traditionally, only the following types of negative easements were enforceable:

  • To restrain development of the owner’s property in order to preserve the easement holder’s access to light and air on his nearby property

  • To restrain development of property to preserve the easement holder’s view (according to more recent cases)

  • To restrain development of the owner’s property in order to preserve subjacent or lateral support for the easement holder’s property so that it doesn’t subside

  • To maintain the flow of artificial streams

Courts today may also recognize and enforce other types of negative easements that they haven’t traditionally recognized. For example, by judicial decision and state statutes, states now generally recognize and enforce conservation easements, a particular kind of negative easement that limits development to preserve the land.