Easements and Covenants
Two or more adjacent or nearby landowners may wish to create their
own "private" land use regime, or a developer or other landowner who is subdividing land may with to do the same.
A conservation easement is a very effective
mechanism for protecting historic resources. An easement is a partial
interest in property, set out as protective covenants or restrictions
and conveyed by recorded deed. The easement runs with the land in perpetuity,
and affects each succeeding owner, but the grantors and successor owners
retain full use and enjoyment of the property, subject to the terms of
the easement. The Internal Revenue Service recognizes a tax deduction
for the gift of a perpetual conservation restriction on the use which
may be made of real property.
Two or more people can create enforceable contractual obligations
among themselves, but how will they make the scheme binding on successors, i.e., how will they enable successors to the benefited
or dominant parcel be able to enforce the promises on successors to the burdened or servient estate?
If they don’t have that ability, sales of the lots by the
original promisor and promisee will undermine the land use regime they’ve created. For example, A, who owns beachfront
property, might agree to grant an easement to B (who owns a lot across the street) to walk across A’s lot to get to
the beach. A is going to want money because having that easement on her lot diminishes the value of her prop-erty. B may be
willing to pay for the easement because it makes his house more valuable; it may not be on the beach, but it has convenient
access to the beach. But B may not want to pay for the easement unless he knows that (a) he can assure future buyers of his
lot that they’ll also have that access, and (b) he can be sure that a sale by A of her lot to a new owner (say, X) will
not end the easement – in other words, that X will be bound, too.
The question you always need to ask in analyzing any set
of facts is this: is there some theory (easement, covenant, equitable servitude) which would support the running of the benefit
or the burden (or both, if necessary), and get
you the relief (injunction or damages or both) that he or she wants? In theory, you need to analyze each set of facts under
all three theories; just because something doesn’t qualify as a real covenant, for example, doesn’t mean that
it might not be enforceable as an equitable servitude.
If you have questions regarding easements and covenants and want
to get one drafted and recorded, give us a call to set up your appointment.