Property: Easements and Covenants

Property law is not only about who owns land, but also about who may use it and under what conditions. Easements and covenants are two core tools that shape land use without transferring possession. They are “servitudes,” meaning they burden one parcel of land or benefit another, often in ways that persist long after the original parties are gone. Understanding how these interests are created, how far they extend, and when they end is essential for anyone dealing with real estate, development, or neighbor disputes.

Non-possessory interests and land use restrictions

An easement is a non-possessory right to use land possessed by someone else. The easement holder does not own the land, but has a defined right, such as the right to cross a driveway, run utility lines, or access a beach.

A covenant is a promise about land use. Covenants can require an owner to do something (an affirmative covenant, such as maintaining a drainage ditch) or to refrain from doing something (a restrictive covenant, such as limiting property to single-family residences). Covenants can be enforced at law (traditionally through damages) and, in many modern settings, through equitable remedies like injunctions.

Both easements and covenants are designed to create stability. A buyer can purchase land knowing the neighbor will not block a shared access route, or knowing a subdivision will remain residential rather than industrial. The cost of that stability is complexity: these rights can “run with the land,” binding later owners who never negotiated the original deal.

Easements: creation, scope, and termination

How easements are created

Easements arise in several well-recognized ways:

Express easements

The cleanest method is a written grant or reservation, typically in a deed. Because easements are interests in land, they usually must satisfy formalities associated with land transfers, including compliance with the Statute of Frauds. An express easement should identify the parties, the land burdened (the servient estate), the land benefited if any (the dominant estate), and the permitted use.

Easements by implication

Courts may imply an easement from the circumstances of a prior use when a larger parcel is divided. A common pattern is a longstanding driveway or utility line serving one portion of the property. If, at the time of severance, the use was apparent and reasonably necessary for the enjoyment of the parcel, a court may recognize an implied easement to reflect what reasonable parties would have intended.

Easements by necessity

An easement by necessity typically arises when a parcel becomes landlocked after a division. The law is reluctant to treat land as unusable simply because it cannot be reached. If access is necessary, a court may imply a right of way across neighboring land that was once under common ownership. Necessity is the key idea: if a parcel later gains lawful access by another route, the easement by necessity may end.

Easements by prescription

A prescriptive easement can arise from long, continuous, and adverse use, similar in spirit to adverse possession but without exclusivity or transfer of title. Classic examples include a path used openly for decades without permission. The required duration and elements depend on jurisdiction, but the theme is consistent: the owner had reason and opportunity to object, and did not.

Easements by estoppel

Where an owner permits another to rely on a promised use right and the user reasonably changes position, courts may enforce an easement to avoid unfairness. This often appears when someone builds improvements based on assumed access or utility rights.

Easement scope and interpretation

Easements are limited to their purpose. A right of way is not a license to park, store materials, or expand the use beyond what was granted or reasonably contemplated. Determining scope often turns on the instrument’s language and, if ambiguous, on the circumstances surrounding creation.

Key practical points include:

• Location and dimensions: Some easements specify metes and bounds; others are “floating” until fixed by use or agreement. Courts typically favor a location that reasonably serves the easement while minimizing burden on the servient estate.
• Maintenance and repair: Unless the document says otherwise, the easement holder may perform maintenance reasonably necessary for the easement’s use, and may bear the cost. Shared-use access roads can raise recurring questions about cost allocation.
• Changes in use: Technological and development changes create disputes. For example, an easement granted for “utilities” may be interpreted to include modern equivalents, but not necessarily any use the holder prefers. The guiding principle is reasonableness and foreseeability given the easement’s purpose.

Termination of easements

Easements do not last forever simply because they are recorded. Common termination routes include:

• Release: The easement holder can release the right, usually in writing.
• Merger: If one person acquires both the dominant and servient estates, the easement may extinguish because there is no longer a need for a right against oneself.
• Abandonment: Nonuse alone is often insufficient; abandonment typically requires conduct showing intent to relinquish the right.
• Expiration: Some easements are created for a term or condition and end accordingly.
• Necessity ends: An easement by necessity usually ends when necessity ends.
• Misuse and remedies: Overburdening an easement can lead to injunctive relief limiting the use, but courts are cautious about forfeiture unless the misuse is substantial and persistent.

Covenants and equitable servitudes: promises that run with the land

Real covenants: enforcement at law

A real covenant is a promise regarding land use that can bind successors and be enforced with legal remedies, traditionally damages. For a covenant to “run with the land,” the law has historically required a set of elements that ensure the promise is appropriately connected to the land and that later owners are not unfairly surprised.

Core ideas often include:

• Intent: The original parties intended the covenant to bind successors.
• Notice: A later purchaser had notice, often through recording, actual knowledge, or visible circumstances.
• Touch and concern: The covenant relates to the land’s use or value, not a purely personal arrangement.
• Privity concepts: Traditional doctrine distinguishes between horizontal privity (between the original covenanting parties) and vertical privity (between an original party and a successor). Modern law in many places softens these requirements, but the underlying concern remains: when should a land promise bind someone who did not sign it?

Equitable servitudes: enforcement in equity

Equitable servitudes are similar promises enforced through equitable remedies, most notably injunctions. They are particularly important for restrictive covenants, such as architectural controls in planned communities.

Equitable servitudes typically emphasize:

• Intent to bind successors
• Notice to the burdened party
• A land-related purpose, often captured by the touch-and-concern idea even where the formal test is not rigidly applied

Because injunctions can be powerful, courts consider fairness. If circumstances have changed so dramatically that the original purpose can no longer be achieved, equity may decline to enforce.

Common-interest communities and recorded restrictions

Many modern covenant disputes arise in subdivisions and homeowner associations. Restrictions are often recorded as part of a declaration, creating a predictable land-use scheme. When a common plan exists, owners may be able to enforce restrictions against each other, not merely against the original developer, assuming notice and intent are present.

Practical examples include:

• Limits on lot subdivision
• Use restrictions (residential-only, no short-term rentals in some regimes)
• Design standards and setback requirements
• Maintenance obligations for shared facilities

These restrictions can protect value and expectations, but they also raise questions about discretion, selective enforcement, and whether rules remain sensible over time.

Changing conditions, modification, and termination of covenants

Covenants and servitudes can end or become unenforceable through several mechanisms:

• Release or amendment: Many declarations provide voting thresholds for modification.
• Merger: If the same person owns the benefited and burdened interests in a way that eliminates the need for the covenant, it may extinguish.
• Changed conditions: If the neighborhood has transformed so significantly that the covenant’s purpose is defeated, a court may refuse enforcement or limit relief.
• Waiver and abandonment: Repeated, substantial violations tolerated over time can undermine enforceability, especially if enforcement becomes arbitrary.
• Recording and notice failures: If successors lack the legally required notice, enforcement against them may fail.

Why these doctrines matter in practice

Easements and covenants quietly govern everyday land use. A buyer may discover a utility easement that limits where a pool can be built, or a restrictive covenant that bars running a business from the home. A developer may rely on an access easement to make a project viable, while neighbors may rely on covenants to preserve a residential character.

The practical lesson is diligence. Because these interests can run with the land, they must be identified, interpreted, and evaluated before disputes arise. In property law, the most expensive surprises are often the ones already written into the ground rules.