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Affirmative and Negative Easements

In real estate law, easements create a legal right of way over a parcel of land. An owner of a dominant tenement or dominant estate will have this right against the owner of a servient estate or servient tenement. A common example includes a new owner of a landlocked property who requires permission to get in and out of the land. The new owner obtains an easement from their neighboring property to cross that person’s land. Here, the landlocked property owner has a dominant estate that allows them to use the property next door, which is the servient estate.

Most types of easements fall under one of two categories: affirmative and negative easements. As will be discussed below, the key difference is whether the person holding the easement right is:

  1. Allowed to do something (affirmative); or
  2. Required not to do something

Unlike zoning laws or eminent domain, which affect land use through government regulation, easements are usually created between private parties.

Affirmative Easements

An affirmative easement gives the easement holder the right to do something on another property owner’s land. Most easements fall into this category. Examples include:

  • Giving the right to access or cross a certain piece of property
  • Allowing a utility company to draw power lines (see utility easements)
  • Donating natural land to an organization that preserves the environment (see conservation easements)

In the earlier example involving a landlocked property, a helpful neighbor can provide an express easement. It would be recorded as a deed with an express grant of right of way for the landlocked property owner.

Negative Easements

A negative easement is a promise not to do something with a certain piece of property, such as:

  • Not building a structure more than one story high
  • Not blocking a mountain view by constructing a fence

There aren’t many negative residential easements in existence today. Common examples include architectural specifications that are typically covered by rules and regulations in homeowners' associations. These documents are usually entitled Covenants, Conditions, and Restrictions, often called CC&Rs.

Consult a Property Rights Attorney

If you have questions about land use and rights of way, you should speak with an experienced attorney. A real property law office or real estate lawyer can advise you regarding the different types of easements. They can help you create an easement or understand your rights under an existing one.

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