LAND USE CONTROLS (PART 2): BY PRIVATE AGREEMENT

Introductory Note: As with estates in land and future interests, we once again have an area of law with categories and accompanying variation in rules that govern (or result) from a given category. And like the area of estates in land, the system here is dictated more by historical precedent than function. The umbrella concept here is “servitudes”, which can be broken out into five types: easements, real covenants, equitable servitudes, licenses, and profits – as well as two less. The distinctions are not always clear (Note, for example, that the court in the first paragraph of the case below refers to a “scenic easement” protected by a “restrictive covenant. The modern trend is to harmonize the rules, requirements, etc. relating to servitudes, covenants, and easements, and the Restatement (Third) of Property, Servitudes (2000) goes a long way in that regard. The historical rules and distinctions, however, will remain relevant and fodder for 1L property courses for many decades to come, as judicial adoption of any new Restatement approach to an area of law can be a slow and uncertain process.

Easements: An easement is essentially a nonposessory right to do (or to preclude someone from doing) an act on the property of another. A common example is the rights granted to utility companies to run their lines over, say, the front 10’ of your yard. Another example is a “right of way” granted by one person, allowing her neighbor (or others) to cross her land.