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May 17, 2024

What are Affirmative Easements and Negative Easements.

Easements grant specific rights to use another person’s property. But these rights can be structured in two main ways: affirmative easements and negative easements.

Affirmative Easement:

  • Definition: An affirmative easement grants the right to do something specific on another’s property. This allows the easement holder to actively use a portion of the land.
  • Example: Imagine a property owner (Landowner A) has a long driveway that cuts across their neighbor’s (Landowner B) land. Landowner B grants Landowner A an affirmative easement for a right of way. This allows Landowner A to use the defined path on Landowner B’s property to access the public road.

Negative Easement:

  • Definition: A negative easement restricts the owner of a property (the servient estate) from doing something specific on their own land. This doesn’t grant the easement holder the right to use the land, but rather limits the owner’s actions to preserve a certain benefit for the easement holder (the dominant estate).
  • Example: Suppose you own a house with a beautiful ocean view. You negotiate with your neighbor behind you (who is planning to build) for a negative easement. This easement restricts your neighbor from building above a certain height, ensuring your ocean view remains unobstructed.
Feature Affirmative Easement Negative Easement
Action Allows a specific action Restricts an action
Benefit Easement holder can do something on another’s property Easement holder benefits from the restriction on the other’s property
Example Right of way, right to access utilities Restriction on building height, maintaining a view

 

By understanding the difference between affirmative and negative easements, you can better understand how property rights can be structured to benefit both parties involved.


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