The Difference Between Easements and Covenants

The Difference Between Easements and Covenants

Easements and restrictive covenants are common in real estate. They both concern the uses of the land. In some ways, the two can be similar.

Many people think of easements as a mechanism that allows someone the use of a property for a specified purpose. While that is true, there are several different types of easements. There is also something known as a negative easement that involves a promise not to do something on the property. In a negative easement, an owner is giving up the right to do something that would be otherwise legal on their land. A restrictive covenant is very similar to a negative easement. A negative easement is usually treated the same as a restrictive covenant.

Common negative easements include:

  • Restrictions on the height of buildings on a property
  • Limitations on the number of buildings on a property
  • Restrictions on the style of buildings
  • Access to light for solar panels
  • Matters relating to environmental conservation

Negative Easements Are Restrictions That Are in Writing

A negative easement is usually created between two parties through a deed or a written contract. The agreement must typically be in writing, and it cannot be implied. The negative easement is recorded or referenced in a  deed to the property. Most often, a negative easement is an agreement between two adjacent landowners. A common example is when an owner has a view of something, such as water, that the owner does not want to be blocked by construction on adjacent property. The most common type of negative easement is that of light and air.

Restrictive Covenants Come with the Purchase of Property

Restrictive covenants are either written directly into the deed or they are referred to in the deed. A covenant is not necessarily a contract between two parties. Instead, it is a set of declarations that goes along with the land. When a homeowner buys a property that is subject to covenants, they, and subsequent owners, are bound by them. . You do not need to specifically agree to restrictive covenants for them to be binding. You become bound by them merely by buying a property that is subject to these covenants. As a property owner, you do not have the right to terminate a restrictive covenant unilaterally, but only with the agreement of others who are benefitted from the restrictive covenant

Restrictive covenants usually apply to several homeowners in an area. While negative easements are usually a contract between two parties, restrictive covenants are decrees that affect many. They can be found in homeowners’ association documents or can be imposed by a municipality.

Covenants Are More Common than Easements

Another difference between covenants and easements is their commonality. In practice, negative easements are rare. Negative easements will usually exist between owners of adjacent property in uncommon circumstances. Restrictive covenants will almost always be present when you buy property in common development. They are viewed as necessary to protect the interests of the “greater good.” Owners must make some sacrifices to protect their neighbors’ common interests and property values.

Covenants Are More Favored by Courts

Negative easements are not always favored by courts, who may look for ways not to enforce them. A common American ideal is the freedom for an owner to do what they want on their land. Courts can take a hostile view when one property owner has the right to force another owner to do or not to do something.

Courts take a more favorable view of restrictive covenants. In many cases, these covenants are necessary to maintain the living environment in an area where there are multiple homeowners. Restrictive covenants are viewed as rights that further the living experience for many, although they come at the expense of an individual owner’s ability to do what they want with their property. Therefore, another key difference between negative easements and restrictive covenants is how they would be treated if they were litigated.

Negative Easements Cannot Be Implied

Another difference between easements and covenants is whether these forms of restrictions can be implied. Unlike other types of easements, a negative easement must be spelled out in writing to be enforceable. If not, courts will most likely view it as legally nonexistent. Additionally, courts will limit negative easements to a small number of topic matters. Given the seriousness with which the law and public policy view a landowner’s freedoms, courts will only restrict these rights in certain limited circumstances.

When it comes to restrictive covenants, a court may create one because of equitable principles.  In other words, courts may imply a restrictive covenant to be fair. When someone or an entity imposes restrictions on several plots of land and they forget to apply covenants to one particular plot, a court could imply restrictive covenants because of the intention for them to apply to all of the plots of land. Here, a court would be going out of its way to protect what it believes would be the interests of the many at the expense of the individual property owner.

Negative easements and restrictive covenants are both complex areas of the law that can have drastic implications on an owner’s use of their property and the value of the property.  Any issues regarding these restrictions should be discussed with an experienced easement dispute attorney due to the difficult legal issues involved.