An easement is the right to use or affect the use of another person’s real property. While there have been many variations of easements over time, negative and affirmative easements are usually opposites.
Where an affirmative easement creates a right to use or cross over another person’s real property, a negative easement creates an obligation or a restriction on the real property owner to not use their own property in a particular way that would otherwise be legal to do so.
Easements formed in English common law by prior continued use or through prescription easements. However, today, negative easements are treated as restrictive covenants and are often expressly recorded in the deed.
Negative easements are generally created through binding legal documents such as a deed or private contract. Sometimes an easement that has not been expressed through a legal writing may be recognized but only upon meeting certain legal requirements in the form of easements by necessity, prior use, or even by the government.
In all situations, it is imperative that the easement be expressed clearly and directly; any ambiguity can result in a court not recognizing that the easement existed should there be a dispute later.
Generally, a negative easement is something that exists between adjacent landowners. The purposes of such easements are to ensure that the parties cannot do something to their land that may hurt the adjacent landowner which is why the restriction is created.
A common example includes restrictions on size, height and style of buildings that may block the view of your neighbor. Restrictions on how you use your property can also be included such as business activities or major structural changes to the land.
If your land is subject to a negative easement, it is important that you not violated the restriction. Failure to comply with the easement can result in a lawsuit and you may liable to your neighbor for damages.
Modern negative easements have focused on some of these important values such as:
- Viewing access;
- Access to solar energy or other alternative energy; and
- Environmental conservation efforts.
A qualified real estate lawyer can help you with the creation of a negative easement, ensuring a negative easement continues or understanding and complying with your obligations of a negative easement.
If you are considering parceling your land, buying a property subjected to an easement or dealing with a negative easement dispute, a lawyer can prepare legal documents and represent your interests.