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Negative and affirmative easements: A primer

| Jan 28, 2021 | commercial and residential land use and zoning |

Generally, an easement is a right of one person to use a portion of land owned by another person (an “affirmative easement”), or to limit the use of a section of land (a “negative easement”). The person or land who benefits from the use of the easement is known as the “dominant estate” or “dominant tenant,” while the land or property owner subjected to the easement is referred to as the “servient estate” or “servient tenant.” There are two types of easements. An “easement in gross” benefits the easement holder, not the property itself, and is usually not transferrable. By contrast, an “easement appurtenant” benefits and burdens the two parcels of land. When the land is sold, the easement rights and burdens are transferred to the new owners.

Creating restrictions and permissions

Both kinds of easements can be “negative” or “affirmative” easements. The more well-known “affirmative easement” grants the dominant tenant the right to use the defined easement area for a limited purpose. Affirmative easements can be used to:

  • Enable utility access to other areas, such as running power lines or sewer pipes through the property
  • Create right of way access
  • Allow an individual to access the property for recreational purposes, such as hunting or fishing

Once given, an affirmative easement may limit the rights of the servient estate or tenant from building on the area of the easement, if that building would interfere with the use of the easement.

A negative easement specifies what not to with land governed by the easement. By placing limitations on the defined easement area, the dominant tenant restricts modifications that would otherwise be legal. Negative easement restrictions can be used to:

  • Prevent an obstructed view or preserve a scenic view by limiting building and structure heights or prohibiting the erection of new structures
  • Preserve the easement holder’s access to alternative power on nearby property, such as light for solar panels and air for wind turbines
  • Maintain or conserve natural elements, such as a waterway. Many public and private conservation organizations purchase “conservation easements” from property owners in order to preserve the properties from development.

Both negative and affirmative easements can impact the sale or purchase and usage limitations of the easement area and surrounding land.

Preventing potential conflicts

No matter if the land is governed by an affirmative or negative easement, the overall goal of the easement is to prevent future conflicts between property owners over the affected area. Thus, whether property owners formalize the easement through deed or a private contract, the language used within the document and the description of the easement should be clear and consistent to prevent a real estate litigation issue later. Issues to address include the exact area of the easement, what activities are contemplated by the easement, how long the easement will run, and maintenance of the easement. All of these issues should be carefully considered, and the solutions carefully drafted, in order to ensure there are no conflicts about the easement in the future.

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