Difference Between Easement and Covenant

Edited by Diffzy | Updated on: September 21, 2022

       

Difference Between Easement and Covenant Difference Between Easement and Covenant

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Introduction

Easements and covenants are mainly related to property dealings. Most of the time, people may find it difficult to make out the difference between an easement and a covenant. However, there exist certain similarities between easement and covenant. They have specific functions. Many types of easements have been discovered recently. These easements can adapt to different applied conditions and provide rights on a different basis. Both easement and covenant have affirmative and negative forms of classification that form the bulk of the general classification. These agreements, verbal or with official documentation, are used commonly these days. These functions might differ based on whether they give the actual ownership rights to the holder or not. For example, in an easement, possession remains with the actual owner itself. However, in the case of a covenant, the ownership might be owned after a long time of usage for a specific purpose. Also, these functions enable the proper usage of resources or assets and prevent malpractices in law enforcement.

Easement Vs. Covenant

 An easement is a right offered to be used to gain access to another's a property without actually owning it. It is similar to the covenants of equitable servitude. On the other hand, a covenant means a binding agreement, a legal contract. It is a seal between two or more parties.

An easement is a legal term that refers to the right to use or access someone else's resource or property. In literature, it means a state of comfort or peace. Easement expresses interest in real estate plans.  A covenant provides a representation of obligations usually made by signing a contract. In this case, there is no ownership rights bound to the temporary holder’s name.

Difference Between Easement and Covenant in Tabular Form

Table: Easement Vs. Covenant
Main parameters of comparison
Easement
Covenant
Definition
An easement is the right to use someone else's property without actually owning it.
It can be defined as a promise made by a party that enables them to engage or refrain from particular conduct.
A covenant is a legal agreement that allows you to use someone else's property without actually owning it.
  
Rights offered
It provides rights to use it or access it only; however, the property remains in the owner’s hands.
But in a covenant, the property is bound to the future stakeholder’s name.
Utilities
It allows certain rights of access.
A covenant comes along with both benefits and burdens.
Types and classification
  1. Affirmative and negative easement
  2. Floating easement
  3. Necessity easement
  4. Express easement
  5. Prescription easement
Also, affirmative and negative types exist here.
Examples of each
To allow fishing on one individual property or provide pathways on one’s property.
A promise to build a wall or fence for free, or a promise not to develop the land for any chemical industry purposes.
Goal or main focus
An easement includes a real estate interest.  An easement is when a person expresses an interest in another person’s land for a specific purpose.
A covenant just concerns the good, proper, or appropriate use of land.
Unlike covenants, easements can be obtained through a long period of the lease. On the other hand, covenants are only an obligation within a contract and do not bind it to future owners.
   

What is an Easement?

An easement is a non-individual right to use or enter another person's property without actually owning it. It is similar to the covenants of equitable servitude. Easements aid in the provision of methods that allow individuals to access other properties. An example can be ‘right to fish in a private pond or to have a barbecue on a public beach’.  At common law, an easement is considered a property right in itself and is still treated as a type of property in most jurisdictions.

The rights in an easement may vary among different jurisdictions. Usually, there are four types of easements in law courts. These are:

  • Right-of-way 
  • Easements in support of
  • Easements in "light and air"
  • Rights about waterways

Modern courts have invented more varieties, but these original categories still form the basics of easement law.

How do we create easements?

Easements are most often created in binding documents. Parties generally grant an easement to another party while also reserving one for them. In most circumstances, having a conversation with another party is not sufficient. It always requires official documentation and paperwork to prove the conditions and identification.

Easement types

There can be two types of easements.

They are affirmative and negative easements.

An affirmative easement is a provision of normal rights on another property for a specific purpose. A negative easement is a legal right that prevents someone else from performing an unfair or negligent act on their property, even if they own it.

For example, an affirmative easement allows landowner A to take the land of owner B for cultivation. In this case, A has an affirmative easement from B. On the other hand, possessing a negative easement might restrict landowner A from running his cattle over owner B’s land. In this case, A is subject to a negative easement from B.

Other classifications are based on whether the easement is public or private.

A private easement is held by individuals or entities. A public easement, on the other hand, grants an easement for public use, such as allowing the public access to a private parking lot owned by an individual for a specific purpose.

Floating Easement

A floating easement is an easement that is flexible and adapts to varying conditions that exist. This can mean there is no fixed location, route, method, or limit to the right offered. This comes into play when the main goal is not yet fixed and may vary depending on future circumstances.

However, a floating easement could shift to fix once construction is done and later it can’t be changed.

Access Easement

An access easement grants the general public access to a parcel of land.

Express easement

An easement can be in one of two forms: implied or express. An express easement is "granted" or "reserved" action by law.

Implied easements

Implied easements are more complex. It is determined by the courts based on property use and the intention of the original parties, who can be private or public/government entities. Implied easements are not recorded explicitly until a court decides on a dispute.

Necessity Easement

A court order might be necessary to determine the existence of an easement by necessity. To obtain this, generally, one of the parties which claim the easement files a lawsuit, and the judge weighs the relative damage caused by enforcing an easement against the estate against the damage to the dominant estate if the easement is found not to exist and is thus landlocked.

Easements by prescription

Also called prescriptive easements, are implied easements granted once the dominant estate has used the property in a hostile and open manner for a statutorily prescribed number of years. Prescriptive easements differ from adverse possession in that they do not require exclusivity.

What exactly is the Covenant?

According to religion, or the holy bible, the covenant is a dominant theme in the Scriptures and serves as a foundation for the story of God's people. In a literal sense, a covenant means a binding agreement, a legal contract. It is a seal between two or more parties. A "covenant" is just a promise made by a single party that enables them to engage or refrain from conduct.

A solemn pledge to engage in or refrain from a specific action is known as a covenant. 

The inclusion of a seal distinguishes a covenant from an ordinary contract under historical English common law. 

  1. The presence of a seal demonstrated an unusual solemnity in the commitments made in the covenant, so the common law would enforce it even if there was no consideration.
  2. In US contract law, an implied covenant of good faith is presumed.

A covenant is similar to a contractual condition in that it is a sort of agreement. A covenanter promises to a covenanted that he or she will do (affirmative covenant (US) or positive covenant (E & W)) or refrain from performing (negative covenant) an activity. 

The term "real covenants" refers to conditions attached to real property in real estate law.

 Modification and enforcement of covenants are usually done by attaining the requirements listed below.

Courts apply a strict interpretation of covenants, giving the provisions of the agreement their ordinary meaning. In general, if the language addressing the presence of a covenant is vague or confusing, the courts will support unfettered alienation of the property. By implication, courts will not enforce any limits on the land (as is done with easements, for example). If the covenant's initial purpose is no longer valid, it might be terminated. In some situations, property owners can petition a court to have the covenants removed or modified, and homeowner organizations may have processes in place to do so.

The covenant can be either affirmative or negative. A negative covenant prohibits property owners from engaging in certain activities, such as blocking a driveway.

The Main Difference Between Covenant and Easement in Points

Definition

A "covenant" is just a promise made by a single party that enables them to engage or refrain from conduct. An easement can be defined as the right to use the property of another without actually owning it.

Ownership rights

Though an easement provides the privilege of using the land for a specific purpose, it does not give real ownership rights to the temporary holder. The covenant binds future titleholders of the property to the covenant. On the other hand, an easement provides the right to do anything related to the property or to prevent someone else from doing something with another person’s property.

Goals and the main focus

An easement includes a real estate interest. An easement is when a person expresses an interest in another person’s land for a specific purpose. A covenant just concerns the good, proper, or appropriate use of land. Unlike covenants, easements can be obtained through a long period of the lease. On the other hand, a covenant is only an obligation within a contract, which does not bind it to future owners.

 Classification and types

  1. Affirmative and negative easements
  2. Floating easement
  3. Necessity easement
  4. Express easement
  5. Prescription easement

Examples

  1. Easement: To allow fishing on one individual property or provide pathways on one’s property.
  2. A promise to build a wall or fence or the promise not to develop the land for any commercial purposes.

Conclusion

The covenant binds future titleholders of the property to the covenant. Easement, on the other hand, grants the right to do anything related to the property or to prevent someone else from doing something with another's property.  A covenant can be referred to as a promise made by a single party either to engage or refrain from conduct. An easement can be referred to as the right to use the property of another without possessing it.

Easement can also mean a person expressing interest in another person’s land for a specific purpose. A covenant just concerns the good and proper, or appropriate use of land. Unlike covenants, easements can be obtained through a long period of usage. If an easement provides you with certain property rights, the covenant demands both benefit and burden together. Easement is when a person expresses an interest in real estate, whereas covenants are obligations made by contracts that are not binding on future owners. There exist multiple types of easement and covenant. Some of them that can be listed are floating easement, access easement, implied easement, express easement, necessity easement, and   affirmative and negative easement. Similarly, affirmative and negative covenant types also exist. The right included in different easement depend also on the type of easement provided to the holder.


Category

Law


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"Difference Between Easement and Covenant." Diffzy.com, 2022. Sun. 02 Oct. 2022. <https://www.diffzy.com/article/difference-between-easement-and-covenant-174>.



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