Also known as: negative easement
Written by attorneys — see sources 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.
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.
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 caseA 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.
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 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.
Supporting sources
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.
Supporting sources
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.
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.
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.
Supporting sources
…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.…