← The hardest concepts in United States law
In one breath
An easement is a right to use someone else’s land for a limited purpose, and a covenant is a promise about how land will be used. Whether either one binds or benefits a later owner depends on how it was created, what it concerns and whether the later owner had notice.
The picture
The gate key and the club rulebook
A key to a neighbor’s back gate is a right to go through that gate. If it was given because of the house, it goes with the house: whoever lives there next has the key, and whoever buys the neighbor’s property takes it subject to that right. If it was given to one person for her own use, such as the plumber who services both houses, it stays with her.
A rule in a club’s rulebook, such as “no fences above four feet”, is a different thing: a promise made by the first members. A newcomer is bound only if the rule concerns the club’s own premises, the founders meant it to bind their successors, and the newcomer was told or could easily have found out. Whether a newcomer who breaks it pays damages or is merely ordered to stop depends on how the rule was made and which test the court applies.
Where the picture stops working
Keys and rulebooks are not land. An easement can arise without any writing, from long use or necessity, while a covenant normally needs a writing. And the technical tests for covenants, especially the old requirements of privity, differ between damages claims and orders to stop, and between states.
How it really works
- 1Classify the right: is it a right to do something on another’s land (an easement, which is an interest in the land) or a promise to do or not to do something with one’s own land (a covenant)?
- 2For an easement, ask how it arose: an express grant or reservation in a deed, implication from prior use or necessity, or prescription from long, open and adverse use. Express easements generally need a writing.
- 3Ask whether the easement benefits a particular parcel (appurtenant) or a person (in gross). Appurtenant easements pass with the land. A later buyer of the burdened land is usually bound if the right is recorded, visible or otherwise known.
- 4For a covenant enforced by damages (a real covenant), the traditional elements are a writing, intent that it bind successors, that it touch and concern the land, and privity between the parties and their successors. The privity requirements vary by state.
- 5For a covenant enforced by an order to stop (an equitable servitude), ask for a writing or an implied common scheme of development, intent, touch and concern, and notice to the burdened successor.
Why people get it wrong
- Using “easement” and “covenant” as synonyms. They are different legal things, though one document can contain both.
- Treating a covenant as if it automatically binds every later owner. Intent, subject matter and notice all matter, and the detail varies by state.
- Overlooking touch and concern. A promise unconnected with the use or value of the land, such as a promise to buy goods from a particular store, often fails to run.
- Mixing up appurtenant and in gross easements. Only the first is tied to a parcel by its nature, and what may be sold or divided depends on which kind it is.
- Applying the strict old privity tests to a claim for an order to stop. Courts commonly treat equitable servitudes under a looser test.
A worked example
The facts are invented
Joel sells the western half of his orchard to Mira. The deed gives Mira the right to cross Joel’s retained half along the lane to the road, and records Mira’s promise, for herself and her successors, that the western half will never be used for anything but orchards. Years later Mira sells to Noor, who has read the deed.
Noor can drive down the lane. The right to cross is an easement created by express grant, tied to the western half, so it went with the land. Then Noor opens a car-repair shop on the western half. Joel can ask a court to stop her: the promise is written, was meant to bind successors, concerns the use of the land, and Noor knew of it. Whether he may also claim damages would depend on the stricter old tests in his state.
Try it
A developer puts a promise in every deed of a subdivision that lots may be used only for single homes. A later buyer who read her deed plans a store, and a neighbor asks a court to stop her. Which statement is best?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Spencer’s Case, (1583) 5 Co. Rep. 16a, 77 Eng. Rep. 72
- Tulk v. Moxhay, (1848) 2 Ph. 774, 41 Eng. Rep. 1143
- Restatement (Third) of Property: Servitudes, (2000)
Where to go next
More hard concepts in United States law
- Future interests (Property law)
- The Rule Against Perpetuities (Property law)
- Proximate cause (Torts)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. United States law is made in fifty states and in the federal system, and the rules differ between them. Each page states the usual formulation of the rule and names landmark decisions; your own state, circuit or course may use different wording. Check the primary sources before relying on any rule.