An easement is the right of one party to use or control part of another’s property. The easement generally includes specific terms that both parties abide by.
Easements take many forms, but they all fall into one of two categories: affirmative and negative.
Affirmative easements
Most easements are affirmative. An affirmative easement grants the easement holder the right to use the property in a specific way.
One common example is access to landlocked property. If one owns a property with no road access, an easement can grant the holder the right to access his or her landlocked property via a road located on another party’s land.
Towns often use affirmative easements to build roads or utilities on privately owned land.
Negative easements
When an easement grants the holder the right to place restrictions on the property owner’s use of the property, it is a negative easement. California law defines a restriction as “a limitation on, or provision affecting, the use of real property” and specifically includes negative easements under this definition.
Often, negative easements affect commercial properties. The agreement may prevent a business owner from constructing a building that exceeds a certain height, for example.
Conservation easements are a specific type of negative easement. A landowner may enter into a voluntary arrangement with a government agency or land trust, agreeing to restrict development of the land. This may include agreeing not to hunt, build or harvest timber on the property. Should the owner sell the property, the easement remains intact, ensuring further preservation of the land.
Whether affirmative or negative, easements allow their holders a limited amount of control over another party’s property.
