Also known as: negative easements
Written by attorneys · grounded in primary & secondary sources — see below
A nonpossessory interest in land that entitles its holder to prevent the owner of the servient parcel from performing acts on that land which the owner would otherwise be privileged to perform. Modern doctrine classifies such interests as restrictive covenants.
Nora Nash owns oceanfront land. She conveys to Nia Nkosi a negative easement over the western strip of her parcel. When Nora begins constructing a tall fence that would obstruct Nia’s view, Nia invokes the easement to stop the construction and preserve her unobstructed sightline to the water.
Natalie Norris purchases a lot in a recorded subdivision. The declaration bars commercial signage on corner parcels. When she plans a backlit billboard, neighboring owner Nolan Nunez sues to enjoin the sign, treating the recorded term as a negative easement equivalent to a restrictive covenant that runs with the land.
Select any source to read its text and confirm it supports the definition.
Neville Norton buys a parcel in a medical office complex subject to a recorded declaration forbidding urgent-care or overnight-patient uses. He proposes a 24-hour clinic. Adjacent owner Nancy Nelson sues to enforce the prohibition, characterizing the recorded term as a negative easement that functions as a restrictive covenant limiting land use.
National Trust acquires a lot in a subdivision originally planned for residences only. When the owner attempts to build a gasoline station, adjoining lot owners sue, claiming a reciprocal negative easement arising from the common development scheme that bars non-residential uses on every parcel.
Nexus Financial buys a lot pursuant to contracts containing height and skyline-corridor limits. An adjacent purchaser sues to stop construction of a three-story building that would block protected views. The suit treats the recorded limits as negative easements enforceable as restrictive covenants that bind successors.
An affirmative easement permits the holder to perform acts on the servient land that would otherwise constitute a trespass. A negative easement instead prevents the servient owner from performing acts that the owner would otherwise be privileged to perform.
Supporting sources
Modern doctrine treats a negative easement as a restrictive covenant. The Restatement (Third) of Property excludes negative easements from the definition of easement and places them within the category of restrictive covenants.
Supporting sources
No. Because the dominant owner performs no physical act on the servient land, the use necessary for prescription never occurs. Courts therefore hold that negative easements cannot arise by prescription.
English courts recognized negative easements only to protect light, air flowing in a defined channel, lateral or subjacent support, and the flow of an artificial stream.
Under traditional doctrine the benefit was usually required to be appurtenant, but modern law permits the benefit of any servitude, including a negative easement, to be held in gross.
Supporting sources
…originates for mutual benefit and exists with vigor sufficient to work its ends. It must start with a common owner. Reciprocal negative easements are never retroactive; the very nature of their origin forbids. They arise, if at all, out of a benefit accorded land retained, by restrictions upon neighboring land sold by a common owner.…