Negative Easements

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 What Is An Easement?

Legally speaking, the term easement refers to the legal right to use another person’s real property, for a specific purpose and a specific amount of time. An easement gives a person the legal right to go through another person’s property as long as the usage is consistent with the specified easement restrictions. While an easement grants possessory interest in the land for a specific purpose, the actual landowner retains the title to the property.

Easements may be granted to anyone such as neighbors, government agencies, and private parties. An example of an easement would be when a property owner allows their private road or path to be used by their neighbors.

Some of the most common examples of easements include:

  • Public utilities;
  • Power lines; and
  • Cable TV, although these are most frequently located underground.

When discussing the different types of easements, it is important to remember that different states may recognize several different types of easements. This largely depends on each state’s specific real property laws. Generally speaking, there are three different types of easements:

  • Easement By Prescription: Also known as a prescriptive easement, this is an implied easement that is gained under adverse possession. What this means is that someone other than the property’s original owner gains use or ownership rights to that property. A person can establish a prescriptive easement as long as they have actually used the land or property, openly and continuously for a specified amount of time, without the permission of the owner. You could have a prescriptive easement if you routinely use a specific portion of someone else’s property for a specific use;
  • Easement By Necessity: This type of easement is generally created by law, and not by a specific promise or agreement between neighbors. The law implies the easement’s existence in order to achieve just results. An example of easement by necessity would be a parcel of land that is landlocked, or cannot be accessed except by traveling over other property. Because of this fact, the law creates an easement by necessity in order to allow the landlocked owner access to their own property by way of the other landowner’s property; and
  • Negative Easement: A negative easement creates an obligation or restriction to the effect that the property’s owner cannot use their own property in a particular way that would otherwise be legal to do so. Negative easements are generally treated as restrictive covenants, and will be further discussed below.

Some other common types of easement include:

  • Express grants;
  • Reservation easements;
  • Affirmative easements;
  • Utility easements;
  • Public easements; and
  • Easement by estoppel.

What Is A Negative Easement? How Is It Associated With Restrictive Covenants?

As previously mentioned, a negative easement restricts the property’s owners use of their own property. Although there have been multiple variations of easements over time, negative and affirmative easements are generally opposites.

While 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. This restriction is to not use their own property in a particular way that would otherwise be legal to do so.

Negative easements are treated as restrictive covenants expressly recorded in the property’s deed. A restrictive covenant is an agreement between a property owner and others that places limitations on how the property is to be used. In general, the covenant is drafted in the deed to the land as previously mentioned, or is otherwise alluded to in the deed. Additionally, the covenant is on public record at a county recorder’s office or city government; a record of this covenant can also be retained by the homeowner’s association when applicable.

Restrictive covenants are intended to retain the property values of the homes in the neighborhood. You should be informed of any restrictive covenants that may apply to you or your property, especially as they may disturb your enjoyment of that property. Being aware of any restrictive covenants is an especially important factor when determining whether to purchase property.

Some of the most common examples of restrictive covenants include, but may not be limited to:

  • Having a home-based business;
  • Restrictions associated with building on specific parts of your property;
  • Keeping the property in a specified condition;
  • Conforming to the color and style of the other properties in the development;
  • Parking on the property;
  • Restrictions regarding the breed of pet and number of pets allowed on the property; and
  • Restrictions associated with the height of fencing, as well as the installation of pools and possession of a trampoline.

How Is A Negative Easement Created?

To reiterate, a negative easement is either expressly recorded or alluded to in the property’s deed. As such, they are also created through binding legal documents, such as a deed or private contract. It is helpful to discuss deeds and how they are recorded, as they are so closely associated with how a negative easement may be created.

A deed is a legal document that may be used to either transfer ownership during the purchase or sale of a home, or when a person inherits property from one of their family members. Deeds may also be used to transfer gifts, trust contents, and certain rights. When a person receives a deed, it is imperative that they file it with their local county recorder’s office in which the property is located. While recording a deed is not actually required by law, failing to record a deed can result in some unwanted consequences.

If a buyer does not record the deed to their new house, it will be considerably difficult for them to prove they are the true owner. A person who cannot prove true ownership over their property may not be able to sell their property, as well as lose the ability to refinance their mortgage. A person may be able to claim an easement or adverse possession of the property if the true owner cannot be legally established.

Additionally, recording is necessary in order for a deed to be valid. This is because the act notifies everyone else that the deed holder not only owns, but is also the rightful owner, of that particular piece of property.

Something else to note about the recording process is that each state maintains its own laws on the issues, known as recording acts. These acts govern the process of how and when a person should record their property, and can help settle disputes associated with property ownership.

In some cases, an easement that has not yet been expressed through a legal writing may be recognized; however, this would only be upon meeting specific legal requirements in the form of easements by necessity, prior use, or by the government.

To summarize, it is imperative in all circumstances that the easement be expressed clearly and directly. Any ambiguity can result in a court not recognizing that the easement existed if there are any disputes later on.

How Can A Negative Easement Affect My Land?

In general, a negative easement exists between adjacent landowners. The purposes of such easements are to ensure that the parties cannot do something to their own land that may hurt the adjacent landowner. An example of this would be restrictions placed on the size, height, and style of buildings that may block the view of your neighbor.

If your land is subject to a negative easement, it is important that you not violate the restriction. This is because failure to comply with the easement can result in a lawsuit, and you may be liable to your neighbor for damages.

Modern negative easements are generally associated with:

Do I Need An Attorney For Negative Easement Issues?

If you are dealing with a negative easement, or have questions regarding the matter, you should consult with an experienced and local property lawyer. An attorney will be able to advise you regarding your legal rights and options under your state’s specific property laws. An attorney will also be able to represent you in court, as needed.


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