Also known as: negative easement
Written by attorneys · grounded in primary & secondary sources — see below
A nonpossessory interest in land that entitles its holder to prevent the possessor of the servient land from engaging in specified acts that would otherwise be privileged.
Nolan Nunez owns a garden parcel next to a lot held by Nicholas Nunez. The two sign and record a memorandum stating that Nicholas will not erect any structure that blocks direct sunlight over the garden. When Nicholas later plans a multi-story addition that would shade the garden, Nolan sues to stop construction. The recorded writing gives Nolan the power to prevent the building because the agreement restricts an otherwise lawful use of Nicholas's land.
Nyah Ndlovu owns land with solar panels. The owner of the adjoining southern parcel records an agreement stating the southern land shall not be used in any manner that casts significant shade on the panels. When the southern owner plants a dense row of trees, Nyah sues to enjoin the planting. The recorded restriction operates as a negative easement because it forbids an act on the servient land that would otherwise be permitted.
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Noreen Nguyen owns a coastal hotel. The neighboring resort owner records a declaration creating a fifteen-foot no-build corridor along the boundary to preserve ocean breeze and views. When the resort plans a new wing inside the corridor, Noreen sues to enjoin construction. The corridor functions as a negative easement because it limits permissible building on the burdened parcel to protect Noreen's use and enjoyment of her own land.
A common owner subdivides land and sells lots subject to recorded height limits that protect views across the subdivision. Nigel Nelson buys a lot with actual notice of the recorded plan and later seeks to build above the limit. Adjacent owner Neil Nair sues to enforce the height restriction. The recorded plan creates reciprocal negative easements that bind Nigel because the restrictions were imposed for the mutual benefit of all lots in the common scheme.
A developer conveys a parcel by recorded deed containing a clause barring consumer banking uses on the top floors. The clause was inserted at the request of an adjacent bank owner but names no benefited parcel. When the buyer later leases the floors for cryptocurrency kiosks, the bank owner sues claiming a negative easement. The court holds the clause creates only a personal covenant because the deed fails to identify any benefited land to which the restriction could run.
An affirmative easement authorizes the holder to enter or use the servient land in a positive way. A negative easement gives the holder only the power to stop the servient owner from performing specified acts on the servient land that would otherwise be lawful.
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Yes. The Restatement (Third) treats a negative easement as a restrictive covenant that limits permissible uses of land. The older distinction between the two categories has been abandoned in favor of a unified category of servitudes.
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English common law limited negative easements to those four categories. American law historically followed the same limits but modern doctrine permits negative easements and restrictive covenants for a broader range of purposes when created by express grant or recorded declaration.
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No. Prescription requires an adverse use that would give the servient owner a cause of action. Because a negative easement merely prohibits conduct rather than authorizing entry, no such cause of action arises and prescription cannot create the interest.
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Traditional negative easements were appurtenant and required a benefited parcel. Modern servitudes law permits the benefit to be held in gross, especially for conservation and preservation purposes, when the instrument so provides.
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…originates for mutual benefit and exists with vigor sufficient to work its ends. It must start with a common owner. Reciprocal negative easements are never retroactive; the very nature of their origin forbids. They arise, if at all, out of a benefit accorded land retained, by restrictions upon neighboring land sold by a common owner.…