Negative easement
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[1]:
- 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[2]:
- 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[3]:
- 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.
Disadvantages to an authority of easements
Major disadvantages to an authority of easements include[4]:
- 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
Examples of Negative easement
- Restriction of building heights: A negative easement could be placed on a property in an urban area to restrict the height of any buildings that are built in the area. This would ensure that the view of the landscape is not compromised by tall buildings.
- Restriction of certain activities: A negative easement could be placed on a property to restrict certain activities such as hunting, fishing, or other outdoor activities. This could be used to protect wildlife or to maintain the integrity of the landscape.
- Restriction of land use: A negative easement could also be used to restrict the use of the land for certain purposes. For example, a negative easement could be placed on a property to restrict the use of the land for mining or logging.
Introduction: There are several other approaches related to negative easements.
- Negotiated Easement: Negotiated easements are created when two parties negotiate an agreement in which one party grants an easement to the other. This type of easement allows for more flexibility in the terms of the agreement, as the parties can determine specific rights and restrictions.
- Prescriptive Easement: A prescriptive easement is created when a landowner has used another person’s land for a specified period of time and under specific criteria. This type of easement is usually created when a landowner has been using the land for a specific purpose, such as access to a public road, for a period of at least 20 years.
- Implied Easement: An implied easement is created when a landowner has been using another person’s land for a specific purpose and has not been challenged for a certain period of time. This type of easement is often created when a landowner has been using the land for a specific purpose, such as access to a public road, for a period of at least five years.
- Express Easement: An express easement is created when two parties enter into an agreement granting specific rights to one another. This type of easement is usually created when a landowner grants a right, such as access to a public road, to another party in exchange for something of value.
In summary, other approaches related to negative easements include negotiated, prescriptive, implied, and express easements. Each of these approaches has different criteria and requirements needed to be met in order to create the easement.
Footnotes
| Negative easement — recommended articles |
| Easement In Gross — Disclaimer trust — Affirmative Covenant — Tenancy at Will — Vesting order — Tenancy At Sufferance — Consent order — Absolute assignment — Absolute title |
References
- 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
