Also known as: negative easements
Written by attorneys — see sources below.
A nonpossessory interest in land that entitles its holder to prevent the owner of the servient parcel from performing acts on that land which the owner would otherwise be privileged to perform. Modern doctrine classifies such interests as restrictive covenants.
Nora Nash owns oceanfront land. She conveys to Nia Nkosi a negative easement over the western strip of her parcel. When Nora begins constructing a tall fence that would obstruct Nia’s view, Nia invokes the easement to stop the construction and preserve her unobstructed sightline to the water.
Natalie Norris purchases a lot in a recorded subdivision. The declaration bars commercial signage on corner parcels. When she plans a backlit billboard, neighboring owner Nolan Nunez sues to enjoin the sign, treating the recorded term as a negative easement equivalent to a restrictive covenant that runs with the land.
Neville Norton buys a parcel in a medical office complex subject to a recorded declaration forbidding urgent-care or overnight-patient uses. He proposes a 24-hour clinic. Adjacent owner Nancy Nelson sues to enforce the prohibition, characterizing the recorded term as a negative easement that functions as a restrictive covenant limiting land use.
National Trust acquires a lot in a subdivision originally planned for residences only. When the owner attempts to build a gasoline station, adjoining lot owners sue, claiming a reciprocal negative easement arising from the common development scheme that bars non-residential uses on every parcel.
Defendant Christina McLean owns the west 35 feet of lot 86 in the Green Lawn subdivision at the northeast corner of Collingwood avenue and Second boulevard in Detroit, where she and her husband John A. McLean reside in a dwelling house fronting Collingwood avenue. In 1891 the subdivision was platted with lots on Collingwood avenue intended exclusively for residence purposes, and all 91 such lots now have residences erected on them. Robert J. and Joseph R. McLaughlin, who owned the Collingwood avenue lots, conveyed several groups of lots in 1892 and 1893 subject to restrictions that only residences costing at least $2,500 could be built and that they must front on the avenue. The McLaughlins conveyed lot 86 to predecessors in defendants' title by a deed dated September 7, 1893, that mentioned no restrictions. In 1910 or 1911 John McLean purchased the lot on contract, completed the partly built dwelling already present, and has since occupied it with his wife. At the time of purchase McLean reviewed an abstract showing the subdivision and its many lots, observed the expensive residences on the street all conforming to a uniform residential character, and was informed by his grantor that the lot carried no restrictions. The McLeans started to erect a gasoline filling station at the rear end of their lot. They and their contractor were enjoined by decree from doing so. The defendants appealed that decree to the Supreme Court of Michigan.
View caseNexus Financial buys a lot pursuant to contracts containing height and skyline-corridor limits. An adjacent purchaser sues to stop construction of a three-story building that would block protected views. The suit treats the recorded limits as negative easements enforceable as restrictive covenants that bind successors.
In February 1964, Alpine Slopes Development Company conveyed Lot 101 of Alpine Meadows Estates Subdivision No. 3 in Placer County to Ernest H. and Jewel Riley by grant deed recorded on March 13, 1964. The deed contained no restrictions upon the use of the plaintiffs’ property nor any reference to any instrument purporting to impose restrictions upon Lot 101. At the time of the conveyance there was no document of record purporting to restrict the use of Lot 101. Nine months later, on November 25, 1964, the grantor recorded a declaration of covenants, conditions, restrictions and reservations on lots 72 through 116 of the subdivision. The declaration recited that the grantor had established a general plan for the improvement and development of the property and set forth 26 numbered paragraphs of restrictions, covenants and conditions, including paragraph 6, which required submission of plans and specifications to the Bear Creek Planning Committee and its approval before any dwelling, garage, building, fence, wall or other structure or excavation could be commenced or maintained. At a time not established by the record the Rileys constructed a snow tunnel on their lot. On January 12, 1972, the committee recorded a notice of violation of covenants, conditions and restrictions that referred specifically to Lot 101 and the declaration recorded November 25, 1964, and recited the probable violation of paragraph 6 in that a covered walkway had been constructed without prior compliance. The Rileys filed a complaint to quiet title and for damages for slander of title. The planning committee and some of its members cross-complained for declaratory relief. The trial court entered judgment quieting title in the Rileys against all claims of defendants and ruling for the Rileys on the cross-complaint. The Court of Appeal, Third Appellate District, affirmed the judgment. The California Supreme Court granted a hearing for the purpose of giving further consideration to the issues raised.
View caseAn affirmative easement permits the holder to perform acts on the servient land that would otherwise constitute a trespass. A negative easement instead prevents the servient owner from performing acts that the owner would otherwise be privileged to perform.
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Modern doctrine treats a negative easement as a restrictive covenant. The Restatement (Third) of Property excludes negative easements from the definition of easement and places them within the category of restrictive covenants.
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No. Because the dominant owner performs no physical act on the servient land, the use necessary for prescription never occurs. Courts therefore hold that negative easements cannot arise by prescription.
English courts recognized negative easements only to protect light, air flowing in a defined channel, lateral or subjacent support, and the flow of an artificial stream.
Under traditional doctrine the benefit was usually required to be appurtenant, but modern law permits the benefit of any servitude, including a negative easement, to be held in gross.
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