Br3v wrote: feralinfant wrote:
Br3v wrote:What is the difference between a negative easement and a an equitable servitude?
For example: A agrees (and intends to bind future assigns) to B to not use A house except for single family use. C buys house from A and has notice.
Seems like it can be an ES easily: (1) intent to bind future (2) touch and concern (3) notice
But couldn't it also be a negative easement appurtenant?
negative easements are covenants. Law of real covenants call for vertical and horizontal privity (as well as writing, notice, intent for restriction to run on BOTH SIDES and touch and concern).
Equitable servitudes have the same requirements minus privity.
Can get damages with the former but limited to an injunction with the latter.
Your example doesn't make clear whether there's horizontal privity between A and B (are they neighbors or did A buy from B). The answer to your question hinges on this.
I see your disclaimer below but, an ES doesn't need privity right, so seems like it's the same thing as a Neg easement
neg easements are covenants. real covenants need privity. otherwise they're just equitable servitudes.
so you're right that ES doesn't need privity but you're wrong that its the same thing as a negative easement.
History lesson FWIW: Traditionally the court didn't really like to allow negative easements so it traditionally only allowed them for the right tto lateral supoport of a building, the right prevent light and air from being blocked by construction, and the right to prevent interference with flow of artificial stream.
However covenants allow for the creation of non-traditional negative easements. The RS has abolished a distinction between covenants and negative easements because there really isn't one.
Real covenants need privity. Equitable servitudes do not.
I mean arguably i guess the term negative easement could encapsulate both these things but in that case they're still not the same thing.
Affirmative easement: writing, intent, notice.
Negative easement can't really make except in a few traditional categories except...
Real covenants: writing, intent, notice, touch and concern, privity.
Equitable servitudes: writing intent notice touch and concern