Also known as: negative servitude · negative easement
Written by attorneys · grounded in primary & secondary sources — see below
A nonpossessory property interest that entitles its holder to prevent the owner of the burdened land from engaging in specified uses or activities that would otherwise be lawful. The interest protects a particular use or enjoyment of the dominant land by restricting conduct on the servient parcel. Modern doctrine treats the interest as equivalent to a restrictive covenant.
SunGrid Energy owns land north of Patel's parcel. Patel's predecessor recorded an agreement stating that the southern parcel shall not be used in any manner that casts significant shade on SunGrid's solar panels. Patel now proposes planting a dense row of trees along the boundary. SunGrid sues to enjoin the planting. The court recognizes SunGrid's recorded right to stop Patel from creating shade that would otherwise be lawful on Patel's own land.
Greenway Conservancy owns an urban garden next to Harbor Trust's parcel. The parties signed a written memorandum in which Harbor Trust agrees to preserve direct sunlight over the garden and not erect structures that materially block it. Harbor Trust now plans a multi-story annex that would shade the garden. Greenway sues to enjoin construction. The court enforces the written limitation as a right to prevent otherwise lawful building on Harbor Trust's land.
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An industrial park declaration recorded by the original developer states that no parcel shall operate between 10 p.m. and 6 a.m. Dusk Works buys a parcel and announces plans for a night-shift line that stays within noise limits. Republic Works, an adjacent owner, sues to enjoin the night operations. The court treats the hours clause as a limitation on permissible uses that runs with the land and binds Dusk Works.
Christina McLean owns a lot in Green Lawn subdivision and begins erecting a gasoline filling station at the rear. Earlier deeds in the subdivision imposed restrictions limiting lots to residential use. Neighboring owners sue to enjoin the station. The court enforces the recorded restrictions as binding limitations that prevent McLean from using her land in a manner otherwise permitted under her fee title.
A negative servitude prevents the servient owner from engaging in specified acts on the burdened land. An affirmative easement instead authorizes the holder to enter or use the servient land in a positive way. The distinction turns on whether the interest grants a right to act or a right to stop action.
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Yes when the instrument creating the interest is recorded and the language shows intent that the burden attach to the servient parcel. Subsequent purchasers take subject to the restriction if they have constructive notice from the public records. The interest therefore binds later owners who acquire the burdened land.
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Modern doctrine permits the benefit to be held in gross when the instrument creates a servitude for conservation or similar purposes. Earlier common-law rules sometimes limited enforceability of benefits in gross, but current Restatement provisions remove that barrier for properly created servitudes.
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The holder may obtain an injunction preventing the prohibited use on the servient land. Courts also recognize damages when the violation causes measurable harm to the protected interest. The choice of remedy depends on the nature of the interference and the adequacy of monetary relief.
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…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…