Covenants, easements and licenses are methods of granting certain rights in connection with the property while retaining title to the land. The agreements vary in their formality and restrictiveness, and parties can choose which type of agreement best conforms to their intended use of the land. Easements are nonpossessory rights to use the property of another owner for a stated purpose. Express easements are written and are usually included in a deed or a will.
The creation of an express easement is governed by contract law. Read More. What are Roads Roads can include streets, rights of way, passages, bridges, footpaths, kerbing and public highways By Phillip Leaman 20 November Restrictive covenants can often prevent a development from proceeding So, whilst that old house on a huge block may By Phillip Leaman 11 July A legal review of the Contract documents will, amongst other things, identify any restrictions affecting the land, These requirements would be too rigid a response, particularly when more time is needed to understand how well-founded such misgivings might be.
Individual decisions informed by experience, rather than expansive rulemaking on the basis of abstract reasoning, is the greatest strength of our common-law heritage. This approach permits courts to intervene selectively in the rare cases where the public interest may not support specific enforcement of an easement.
This is already a familiar response in, for example, the law of nuisance, where individual awards may be limited to monetary damages alone. State attorneys general may also be able to exercise increased oversight and represent the public interest more actively as conservation easements come into ever-broader use. Nonpossessory interests in property are as widespread as rights of way and as familiar as the covenants in a homeowners' association agreement.
The enormous usefulness of these servitudes makes efforts to modernize and rationalize their application critically important. At the same time, because their influence is felt in numerous facets of everyday life, judicial analysis of their legal effects provides a context within which to consider bedrock issues of public policy.
Joan Youngman is senior fellow and chairman of the Lincoln Institute's Department of Valuation and Taxation and an attorney who writes on legal aspects of property taxation policy and practice. She has developed and teaches numerous Institute courses on conservation easements, land valuation techniques and the interaction of property taxation and public finance. Skip to main content.
User Log In Create Account. Easements, Covenants and Servitudes. Traditional Limitations and Future Trends. Joan Youngman. The New Restatement of Property Part of the complexity of nonpossessory rights stems from the numerous and often ambiguous distinctions among them in the common law. They fall within four traditional categories: An easement is a nonpossessory right in the land of another. A profit allows the holder to enter on land that he or she does not possess and remove resources from it, as by mining coal or harvesting timber.
Covenants, including both real covenants and equitable servitudes, are promises between owners of neighboring land, differing only in the remedy available in the event the promise is broken.
An equitable servitude can be specifically enforced by ordering action to be taken and the promise kept; breach of a real covenant would only result in monetary damages. Policy Arguments: Pro and Con Judicial decisions concerning nonpossessory interests often give weight to larger issues of public policy in determining whether to enforce these agreements.
New Models for Judicial Decisions Given the effort of the Restatement to release some of the "dead hand" of common law classification, and given the enormous proliferation of commercial, condominium, homeowner and conservation restrictions in recent years, what new criteria should courts apply in determining whether to enforce a specific agreement? The Special Case of Conservation Easements Conservation easements are currently one of the most significant and fastest-growing types of servitudes.
Conclusion Nonpossessory interests in property are as widespread as rights of way and as familiar as the covenants in a homeowners' association agreement. English Version. Appears in Land Lines, September A promise to build wall or fence or the promise not to develop the land fo any commercial purposes. When Easement inflicts certain property right, covenant calls for benefit and burden. When easement can be termed as an interest in real estate, covenants can be termed as only contractual obligation, which are not binding upon future owners.
Covenant just concerns the appropriate use of land. Unlike covenants, easements can be obtained through long usage. Summary 1. Easement can be termed as an interest in real estate, covenants can be termed as only contractual obligation, which are not binding upon future owners.
Difference Between Easement and Covenant.
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