Also known as: negative servitudes · negative easement
Written by attorneys — see sources below.
A servitude that benefits one parcel by preventing the owner of the burdened parcel from performing acts that would otherwise be lawful. The restriction limits permissible uses of the servient land and runs with the land when properly created and recorded.
Harold recorded a subdivision declaration barring commercial signage on corner lots. Mia bought one such lot with record notice and planned a backlit billboard. The association and neighbor Lewis sued to stop construction. The court treated the recorded prohibition as a negative servitude binding Mia and enforceable by the benefited owners.
MedCore recorded a declaration forbidding urgent care or overnight stays on any parcel in its medical complex. Apex bought a parcel and proposed a 24-hour clinic. Neighboring owner Harbor Clinic sued to enjoin the use. The court classified the prohibition as a negative servitude running with the land and enforceable against Apex.
The Riverfront Arts District Trust recorded deeds stating no unit could be used for non-arts retail or general office space. Lina purchased a gallery unit and sought to lease it to a design firm. Neighbor Marco sued to block the lease. The court held the recorded term created a negative servitude limiting land use and enforceable by benefited gallery owners.
McLean began building a gasoline station at the rear of a residential lot subject to a recorded subdivision plan limiting uses to dwellings. Neighboring owners sued to enjoin the station. The court enforced the plan as a negative servitude running with the land that prevented the proposed commercial activity.
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 negative servitude requires the burdened owner to refrain from specified uses of the land. An affirmative covenant instead requires the owner to perform an act such as making payments or maintaining a structure. The distinction turns on whether the burden compels forbearance or affirmative conduct.
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Yes when the instrument creating it is recorded and shows intent that the burden and benefit attach to the parcels. Subsequent purchasers with notice take subject to the restriction and may be enjoined from violating it.
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Yes. Modern doctrine focuses on the substance of the restriction rather than magic words in the instrument. A recorded promise limiting land use qualifies as a negative servitude or restrictive covenant regardless of the precise label used.
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Yes. Record notice binds the purchaser to the restriction so that benefited owners may obtain an injunction preventing the prohibited use.
Supporting sources
…by restrictions upon 53 of the 91 lots fronting on Collingwood avenue, and that defendants' lot is subject to a reciprocal negative easement barring a use so detrimental to the enjoyment and value of its neighbors. Defendants insist that no restrictions appear in their chain of title and they purchased without notice of any…