The Difference between Easements and Covenants
Both easements and covenants can be affirmative or negative. However, easements are typically affirmative, giving the holder the right to use the servient land, whereas covenants are typically negative, limiting what the burdened party can do on her own land. Distinguishing affirmative easements from negative covenants is therefore pretty easy.
The real trick is distinguishing between negative easements and negative covenants. Both restrain the use of the land they burden for the benefit of someone else. In fact, the two can be so alike that courts sometimes call implied covenants “reciprocal negative easements.”
Sometimes it doesn’t matter whether an interest is called a negative easement or a negative covenant. But sometimes it does, such as when deciding whether an oral agreement is enforceable. Consider the following to help decide whether an interest is an easement or covenant:
The parties’ expressed intent: The instrument creating the interest may expressly say that the interest is a covenant or an easement.
Breadth of the restraint: If the restraint prohibits a particular type of use on the entire burdened parcel of land, it’s probably a covenant. If the restraint prohibits only a specified use in a specified part of the land, it’s likely a negative easement.
Character of the restraint: The parties presumably intend the interest to be valid and enforceable. If the restraint wouldn’t be a permissible subject for a negative easement, then it should be construed as a covenant if possible.
Benefit in gross: An easement or covenant may be called in gross when the benefit of the restriction isn’t connected to any land but is personal to the benefited party. At least, many courts would say that a real covenant may not be in gross, whereas everyone would agree that easements may be in gross.
So presuming that the parties intended a valid and enforceable interest, a restraint in gross should be construed as a negative easement if possible.
Oral restrictions: Though nonpossessory, easements are interests in land and are therefore subject to the statute of frauds, which requires written evidence of the interest. But some courts hold that covenants don’t have to comply with the statute of frauds, so an enforceable oral restriction would almost certainly have to be a covenant rather than a negative easement.