Equitable easements are non-possessory interests in a property that grant specific rights to someone who does not own it. They are tied to the deed of ownership and can be positive or negative. Violations can be stopped by injunction, but if the right is relinquished or not protected, it will not be enforced. It is important to research the title and clarify any surprises before buying a property.
An equitable easement is a type of non-possessory interest in a property, meaning that a person who does not own a property has a specific right to it. Another example of a non-possessory interest is an easement. In the case of equitable easements, both positive and negative rights are recognized, in the sense that someone may have the right to do or not do something specifically on a given piece of land. The interest is tied to the deed of ownership and future owners of the property are expected to abide by it as long as they are aware of it.
When an agreement for an equitable easement is initially made, it is usually written and clearly defined for the benefit of all parties, as well as their successors. Equitable easements often arise when land is divided up for development or when land use changes. It can be used in various ways to extend rights to interested parties who may not own a material share in a property. If the property is sold, the party buying the land must be advised of the equitable easement, and the agreement can be designed to revert to descendants upon the death of the original rightholder.
When an equitable easement is violated, people can file for an injunction to stop the violation. Those who have an agreement to graze livestock on fenced land, for example, can ask the court to remove the fence or create a gate to make the land accessible to livestock again. The judge can examine the facts of the case and issue an injunction if he sees fit.
There are situations where an equitable easement will not be enforced by injunction. If someone violates it without being aware of it, a judge will not enforce the right. Similarly, if violations have been going on for a long time and no action has been taken, a judge may rule that, by not protecting their rights, people have lost them. If the right is deemed to be relinquished, or if people fail to sue in time after a violation has been found, that too will not be argued.
When people buy a property it is common to research the title to confirm that it is clear and to identify any interests in the property that could impact the value. People should ask for clarification if surprises occur during this research phase. It’s also recommended that you confirm that the recorded property lines are the same as the apparent physical property lines, and note any deviations, such as a neighbor’s fence that has strayed from the property line.
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