Negative easement
| Negative easement |
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| See also |
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
Footnotes
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
