Understanding positive and negative easements

Easements make it easy for property owners to enjoy the full benefit of their land even if it is, in any way, dependent on another property. The simplest example of such a situation is a piece of land owned by Landlord Avery that can be accessed only by passing through another piece of land that belongs to Landlord Brian. In this case, an easement gives Landlord Avery access to Brian’s land for the purpose of using it to navigate to his own property. However, Avery does not have any legal possession over Brian’s land, even the part that he is allowed to use to get to his own house. This is why easements are also known as non- possessory interests in the land.

In this example, Avery’s land is getting some benefit from the easement and this makes it the Dominant Tenement. Brian’s land, which is serving a purpose for Avery, is known as the Servient Tenement.

Positive and Negative Easements

A positive easement is when the Dominant Tenant CAN do something in the land that is the subject of the easement. In our example, Landlord Avery CAN use a part of Brian’s land to access his own house. Another good example of a Positive Easement, also known as an Affirmative easement, is the legal right to install power lines or sewage lines on a property that is not actually owned by the landlord (Avery) but by the Servient Tenant (Brian).

In contrast, Negative Easements allow the Dominant Tenant (Avery, in the example) to restrict the Servient Tenant (Brian) from using his land for specific things. These are uses that the Servient Tenant may generally have all rights to use the land for, if the easement did not exist.  For example, Brian may be prevented from building a huge wall on the land that prevents Avery from using the access way through the land to his property. Or Avery may prevent Brian from building a high structure that blocks the light and air to his, Avery’s property. Despite the fact that the land actually belongs to Brian, Avery does have some control over what CANNOT be done with it thanks to the easement.