Negative easement is one in which the holders of the easements prevent other property owners from using their property in a particular way or prevent particular acts by other landowners: for example, an easement restricting the heights of buildings on adjoining property. These negative easements can have a possible twofold tax advantage:
- First, the taxpayer/landowner can perhaps take a charitable contribution deduction. For example, a business might grant a neighboring church a negative easement that prevents the blockage of sunlight from the church's stained glass windows. The business can take the value reduction this easement causes in its property as a charitable contribution deduction.
- Second, the taxpayer/ Landowner's property taxes can be reduced by the decrease in value brought about by the easement restrictions. As easement that prevents the shading of solar panels is an example of a negative easement..
Types of negative easements
English courts recognized four types of negative easements:
- right of airflow (duty not to interfere with airflow)
- right to light (duty not to block light or the easement holder's windows)
- right to channeled water flow ( duty not to interfere with water flow in artificial streams to the dominant estate)
- right to lateral support (duty not to remove support from a house on the dominant estate)
American courts accepted these four, and though reluctant to recognize other forms:
- view easement (duty not to block view)
- solar easements ( to protect access to solar energy)
- conservation easements (usually given a government or charity to protect or maintain historical or scenic areas)
Classification of easements
Easements are classified as either affirmative or negative:
- Affirmative easement is an interest that allows the holder or owner of the easement to use the land of another.
Example: Emily grants an easement to her next-door neighbour, Michael, giving him the right to utilize her driveway for faster access to the street. Michael has an affirmative easement across Emily's property.
- Negative easement grants the right to restrain or prevent the use of land owned or possessed by another person.
Example: Chris grants an easement to his next-door neighbour, Tyler, by which Chris agrees to maintain the trees on his hillside property at a height of 25 feet or less to allow Tyler an unobstructed view from Tyler's property. Tyler has a negative easement that prevents Chris from exercising the right to maintain his landscaping in any manner he desires.
Major disadvantages to an authority of easements include:
- difficulty in establishing easement values for negotiation purposes
- administrative problem in enforcing authority right
- potential problem of enforcement against subsequent fee purchases or land uses if the easement is not properly recorded.
- disadvantage in rapidly developing areas is that the easement cos can approximate the cost of fee simply ownership
- M. Jennings 2007, p.72-73
- D.B. Burke, J.A. Snoe 2011, p.484-486
- C.K. Fields 2016, p.34
- L.A. Christensen 1982, p.11-12
- Burke D.B., Snoe J.A., (2011). Property: Examples & Explanations, Aspen Publishers, New York.
- Christensen L.A., (1982). Irrigating with Municipal Effluent, United States Department of Agriculture, Washington.
- Fields C.K., (2016). Essentials of Real Estate Law, Wolters Kluwer Law & Business, California.
- Jennings M., (2007). Real Estate Law, Cengage Learning, Mason.
Author: Emilia Trzeciecka