Easements and Covenants

A short reply to the question what are Easements and Covenants sounds: Easements are documents that provide a person with a rights to property, Covenants are document that contain rules limiting the usage of the property. A more detailed answer follows.

 

Easements

In the common law tradition Easement (in some jurisdictions - servitude) is defined as a non-possessory interest to use real property in possession of another person for a stated purpose. This document is considered a property right in itself at common law and is still treated as a type of property in most of existing jurisdictions. Easement does not give the holder the right of "possession" of the property, it provides only with a personal privilege to use land for a limited purpose. Also the easement provides that the benefits of most easements (appurtenant easement) flow to an adjacent parcel of land, not to a specific person.

 

As for the one province that has a Civil Law tradition – Quebec, in the Civil Code of Quebec it is named servitude and described in the article 117 as following: “A servitude is a charge imposed on an immovable, the servient land, in favour of another immovable, the dominant land, belonging to a different owner.” There are two types of servitudes - personal servitudes and land (praedial) servitudes. The praedial servitude provides a limited real right to the land of another, which confers on the owner of the dominant tenement, in principle, permanent, defined entitlements of use and enjoyment with regard to the servient tenement. The personal servitude is a limited real right granting the servitude holder specific entitlements of use and enjoyment of a movable of immovable property for a specific period of time (in some cases lifetime) for a maximum of 100 years.

 

 

Covenants

In the common law tradition Covenant is a document that runs with the land. It is an agreement between adjoining landowners to do something (affirmative covenant) or to refrain from doing something (restrictive covenant) with relation to the land. Every covenant has two sides – burden and benefit. The burden holds the promissors duty to perform the promise and the benefit the promisee's right to enforce the promise. The covenants are tied to the land and not the owner, so any successor of the land will be able to enforce the covenant or be burdened by it. In order for the burden of covenant to be legal the following requirements must be met. The covenant must be in writing, the original parties must have intended that successors be bound by the agreement. The document must relate to the use or enjoyment of the land. The owner also must have an actual notice, inquiry notice, or constructive (record) notice of the covenant at the time of purchase. In order for the benefit of the covenant to run with the land, the following requirements must be met. The document must be in writing and must meet the appropriate requirements similar to requirements of the burden to be enforceable.

 

 

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