Also known as:positive easements · affirmative easement · affirmative easements
Written by attorneys · grounded in primary & secondary sources — see below
An interest in land that entitles its holder to perform specified acts on the servient estate that would otherwise constitute trespasses. The interest arises by grant or prescription and burdens the servient land while benefiting either a dominant parcel or the holder personally.
Sources & Authorities
How it applies
Common Examples
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Recorded Access Road Right
Perry Pratt's trucking depot sits behind land now owned by Keystone Warehouses. Years earlier the prior owner granted Pratt a recorded perpetual right to drive across a paved road on the warehouse parcel to reach the interstate. Keystone later locked a gate and blocked the road. Pratt sues to restore access. The recorded grant gives Pratt the privilege to drive on Keystone's land, an act that would otherwise be a trespass, so the interest qualifies as a positive easement that binds the successor owner.
Pipeline Maintenance Access
Pablo Perez sold a ranch parcel to Carter subject to all recorded interests. Years before the sale, Lone Star Energy had obtained a recorded written grant from Perez allowing it to bury and maintain a gas pipeline across a described strip and to enter for inspection and repair. Carter objects to the pipeline and demands its removal. The recorded grant authorizes Lone Star to keep the line in place and to enter the strip, acts that would otherwise be trespasses, so the interest remains a positive easement that Carter cannot unilaterally revoke.
Select any source to read its text and confirm it supports the definition.
Restatements
Dictionaries
Bormann v. Board of Supervisors in and for Kossuth County584 N.W.2d 309 (Iowa 1998)
Common questions
Frequently Asked
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How does a positive easement differ from a negative easement?+
A positive easement authorizes the holder to perform acts on the servient land that would otherwise be trespasses. A negative easement instead prevents the servient owner from performing acts that the owner would otherwise be free to do. The distinction turns on whether the interest confers an affirmative privilege to act or merely a right to restrain the servient owner's conduct.
Supporting sources
Does a positive easement require a writing to be enforceable against a subsequent purchaser?+
A positive easement created by express grant is typically evidenced by a writing that satisfies the statute of frauds and is recorded to provide constructive notice. When properly recorded, the easement binds subsequent purchasers who take subject to recorded interests. An unrecorded easement may still bind a purchaser with actual notice or one who fails to qualify as a bona fide purchaser.
Supporting sources
Can a positive easement be created without an express grant?+
A positive easement may arise by prescription when the claimant uses the servient land openly, continuously, and adversely for the statutory period. It may also arise by implication or necessity when the facts show the parties intended a permanent right of access that is reasonably necessary for enjoyment of the dominant estate.
Supporting sources
584 N.W.2d 309 (Iowa 1998)Land Use Law
…do. An easement which entitles the owner to do acts which, were it not for the easement, he would not be privileged to do, is an affirmative easement.... [The easement] may entitle [its] owner to do acts on his own land which, were it not for the easement, would constitute a nuisance. Restatement of Property § 451 cmt. a, at 2911-12…
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