Okay so stupid question.... what is the difference between an easement and a covenant? Is there a difference, or are they essentially the same? I know our book taught them in two separate sections but then mentioned something at the very end about the restatement reorganizing things, but our Prof wasn't big on the Restatement and never mentioned it in class.
I know you can't create a negative easement in most cases, but what about an affirmative easement? Same as a covenant? Why do there need to be twenty different categories of property agreements? Boo.
Dany wrote:Wow, my apartment gets SO clean the day before exams.
This was me Friday. My apartment hasn't been this clean since I moved in.
First exam Tuesday... I think I might need to have a drink to get to sleep tonight.
Affirmative easements is the right to do something on someone else's land. Most common is the "right of way," which basically means you can use a road on someone else's property or something. Easements are appurtenant (run with the land) or can be enforced in gross (by the grantor him/herself, even if they are no longer the property owner).
Covenant (aka "real covenant," "affirmative covenant", or "negative covenant"/"restrictive covenant") is a contractual arrangement with another party to do or not do something on your own land. A covenant might be to build a wall, refrain from blocking a stream, etc. They generally run with the land, and will be unenforceable in gross (with some exceptions for homeowner's associations and charities). You have to meet a few requirements for both the benefit to run and the burden to run , although you can have only 1 or the other run with the land (in writing, privity, notice, intent, and maybe 1 or 2 more i'm forgetting) traditionally the biggest issue was the "privity" requirement (both horizontal-- between the original covenanting parties, ie the original two people, and vertically-- between each individual covenanting party and their successors in interest). If you claimed a breached covenant you could get damages only. Covenants could also be enforced as an equitable servitude, (just drop the privity requirement), which allowed for injunctions, but no money damages. 3rd Restatement abolishes the differences between them and a bunch of requirements and just makes the test the grantor's intent I believe, and combines them into 1 of them (can't remember which, equitable servitude I think), and you can get money damages or disjunctive relief.
Negative easements and restrictive covenants are basically the same thing and I think the restatement abolishes any differences between them.