Easements & Covenants

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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.