A negative easement is an obligation not to use land in specified ways. Under 19th century English law, negative easements prevented landowners from building or altering their land in such a way as to block sunlight, air, or water flowing in a defined channel, or to take away lateral support to adjacent property. The English common law granted negative easements by prescription, meaning that the right was gained through continued prior use.
In order to promote the growth of cities in America during the 19th century, the courts universally held that negative easements could not be gained through prescription. As a result, in America, negative easements are treated as restrictive covenants.
There is no technical form that is required to create a negative easement. While they are generally created expressly in a deed, they may also be created by private contracts not for the transfer of title to the land, or, in some states, by implication. Negative easements may be created by express words of covenant or grant. However, the language creating the negative easement must be clear and direct and implication must be unmistakable. When creating a negative easement the form is unimportant; what matters is the clarity of the written words that create it.
If a negative easement exists between your land and adjacent land, you are bound to its restrictions. This may prevent you from using your land in ways you would have been free to had the negative easement not existed.
For example, a negative easement may:
Modern negative easement law has primarily focused on conservation easements, easements for view, and easements for access to solar energy. Many states have granted special protections in these three areas.
For example, California recognizes the right to receive sunlight across the property of another for collection in any solar energy system. This reflects a policy decision by the legislature to reduce California's energy deficit, promote the use of clean and renewable energy, create jobs related to solar energy, and protect California's preeminent role as home to the World's largest concentration of solar energy companies.
An experienced real-estate attorney would be useful in helping you create a negative easement, determining if a negative easement affects your property, helping you enforce a negative easement, and ensuring that you are complying with a negative easement.
Last Modified: 11-13-2013 11:29 AM PSTLaw Library Disclaimer
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