Affirmative and Negative Easements

Easements are agreements which pertain to the use or conservation of a certain area of land. Most easements that are entered into will fall under two categories. These include affirmative and negative easements. While both are similar in terms of being – in most cases – binding legal arrangements, there are also some significant differences which need to be recognized.

What Does an Affirmative Easement Consist Of?

The differences between affirmative and negative easements relate mostly to the freedoms or restrictions that they bestow upon both parties that enter into the agreement. In the case of an affirmative easement, the agreement is designed to give the holder the right to do something. This something will be specifically stated in the terms of the agreement, and the boundaries of this action will also be defined.

Meanwhile, the affirmative easement will also require that the owner of the property do a specific something. This may include allowing the holder of the easement the right to cross or use the road that cuts across the property holder’s property. Most easements will involve an agreement that falls into the affirmative category.

What Does a Negative Easement Consist Of?

A negative easement is a whole other matter. This type of ease involves a promise made by the holder of the property not to do a specific something. For example, a negative easement may bar a land owner from developing their land for private or commercial use. It may also involve not building any structures on their property that stand more than a certain agreed upon height.

Negative easements are rather less common today than affirmative easements. This is because such rules and regulations are usually covered by homeowner’s associations. Most such associations will require the owner of the land to agree sign a series of documents known as Codes, Covenants, and Restrictions (CCR).

What Are Modern Examples of an Affirmative and Negative Easement?

Depending on the situation, you may choose to enter into either an affirmative or negative easement with another party. Some of the situations in which you may choose to do so may include, but will not be limited to, the following:

• An affirmative easement may cover a situation where a person is granted the right to use a certain road on your property.
• An affirmative easement may be granted to allow a person to build a structure, such as a barn or shed, that cuts partially across or into your property.
• An affirmative easement may cover a situation in which a person is allowed to make an addition to their home, such as a deck or balcony, that cuts partially across or into your property.
• A negative easement may be issued to stop a landowner from developing a certain portion of their land for private use.
• A negative easement may be issued to stop a landowner from building a large fence that blocks off public view of a mountain or other scenic area.
• A negative easement may prevent a land owner from building additional structures on their land that are incompatible with the stated rules of their homeowner’s association.

It’s Important to Know Your Rights as a Landowner

Before you enter into an easement of any kind, whether affirmative or negative, it is very important for you to be fully aware of your rights as a landowner. You should be aware that you cannot be forced into signing either an affirmative or negative easement against your will. You cannot be legally compelled to sign an agreement that gives another party the right to perform any sort of action on land that you hold as property. If such compulsion exists, you have the right to seek legal aid to put a stop to it.

In some cases, you do enter into a sort of negative easement by signing your homeowner’s agreement documents before taking possession of your new property. However, any perceived breach of these documents will be addressed first in a meeting with your local homeowners’ association representatives rather than in a suit brought against you in a court of law.