The Difference Between Easements and Covenants

Easements and covenants are common in real estate and both concern the uses of the land. In some ways, the two can be similar however, here are five ways covenants differ from easements.

1. Covenants Are More Favored by Courts

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.

2. Covenants that Run with the Land

Covenants that “run with the land,” bind subsequent owners of the land even though they were not a party to the original agreement.

A covenant that runs with the land directly relates to the use or enjoyment of the land. In other words, the covenant usually is connected to the land in some way, and the land cannot be transferred without the covenant.

For example, a covenant that requires the land to be used only for church purposes restricts the use of the land, and because a new owner would have to use the property only for church purposes, it “runs with the land.”

3. 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.

4. 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.

5. A Covenant is not Necessarily a Contract

In contrast to easements, 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.

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.

Property Easement Lawyer

Easements and 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.

Easement disputes often arise from negative easements and restrictive covenants. Easement dispute attorney Mark Weinstein is a former professor of political science and legal studies and an expert in real estate law. Attorney Weinstein has closed hundreds of real estate transactions and litigated hundreds of cases. Contact the Law Offices of Mark Weinstein today to discuss your property easement dispute.