Covenants & Easements

Covenants

A covenant is an agreement or promise between two or more parties by which all agree that something will be done, or shall be done or shall not be done.

In real estate we typically find covenants which restrict certain uses of real estate and/or require the owner to make their property conform to certain guidelines. Restrictive covenants are binding legal obligations which an owner of property can either set out in detail in a deed or an owner may record a declaration of covenants setting forth in detail the restrictions affecting the property.   These covenants can be either simple or complex and can set out remedies against subsequent owners who fail to comply.

Historically, restrictive covenants have been used when a person or entity owned a large tract of land and wanted to subdivide the property into smaller parcels which would all be used, occupied and developed in the same way. In accepting a deed subject to certain restrictive covenants, the buyer promises they will comply with the restrictions.  If the buyer subsequently violates any of the restrictions, the original owner or those people who bought from the original owner are entitled to a remedy, often in the form of an injunction requiring the buyer to bring the property into compliance with the restrictive covenant.

Restrictive covenants on a property can govern how it is used by the occupants.  For example, a restrictive covenant on a residential property might bar any business activities from being conducted on the property.  This could preclude the occupant from running a home-based business or having a home office on the premises.

Architectural guidelines set in restrictive covenants may limit renovation plans for the property.  The buyer of the property may be required to maintain its original appearance or to keep the property in a certain color scheme or style that is comparable to neighboring properties.  For example, a property in a certain area or neighborhood may be under restrictive covenants to adhere to a specific type of roofing and exterior color to maintain aesthetic consistency in the neighborhood.  Property owners could be barred from placing commercial signs or signs of any type on the premises.  Flagpoles on the property may be limited to a certain height.

Once a restrictive covenant is recorded at the registry of deeds, it is often difficult to amend or terminate.  It may require all of the owners of every lot affected by the restrictive covenant to agree, in writing, to amend or terminate it, or it may require a court order.

Easements

An easement is a property right that gives its holder an interest in land that is owned by someone else.  An easement does not allow the easement holder to occupy the land or to exclude the owner of the land from using the easement area unless the owner’s use interferes with the easement holder’s use.  The land owner may continue to use the easement area and exclude third parties from the land provided such use does not adversely affect the easement holder.  Land affected or burdened by an easement is called a servient estate, while the land or person benefited by the easement is known as the dominant estate.  

Most types of easements are affirmative, which means that they allow the use of another’s land.  Less common are negative easements, which usually involve preserving a person’s access to light or view by limiting what can be done on a neighboring or nearby property.

The experienced attorneys at Smith-Weiss Shepard & Kanakis, P.C. can review your deed, as well as the chain of title or history of your property, and advise you on the ramifications of any restrictive covenants or easements affecting your property.