Difference Between Easement and Covenant (With Table)

We enter into several property agreements in everyday life. At times, it may be hard to choose the correct property law to enter. Easements and Covenants are two such property laws that often confuse. While the two may seem similar, they vary considerably.

Easement vs Covenant

The difference between an easement and a covenant is that an easement allows the individual to use the property of another individual. In contrast, a covenant is a common law that prohibits or encourages an action. Easements are generally affirmative. On the other hand, covenants are usually negative. 

An easement refers to a non-possessory right that allows an individual to enter into or use the property of another individual without owning it. There is a negative and affirmative easement. In addition, an easement has a dominant and servient estate. It may be public or private.

 A covenant refers to the promise to participate in or refrain from performing a particular action. Covenants related to land are classified as real covenants. Real covenants form a massive proportion of the land covenants. In addition, covenants may exclude certain sections of the population based on race, religion, or ethnicity

Comparison Table Between Easement and Covenant 

Parameters of ComparisonEasementCovenant
Definition An easement refers to a non possessory right that allows an individual to enter into or use the property of another individual without owning it.A covenant refers to the promise to participate in or refrain from performing a certain action.
Components It comprises a dominant and servient estate.It comprises restricted land and benefited land. 
NatureEasements are generally affirmative in nature.Covenants are generally negative in nature.
Implication on future owners Easements cannot be imposed against future owners of land.Covenants may be imposed against future owners of land. 
ExampleThe provision of fishing in a private pond.The limitations on the measurement of a building to be built in a particular area.

What is Easement?

An easement refers to a non-possessory right that allows an individual to enter into or use the property of another individual without owning it. In addition, easements provide accessibility to the property of another individual. An example is the provision of fishing in a private pond. Another instance is the provision of a public park or a public beach

Typically, there are four types of easements: right of way, easements of light and air, easements of support, and rights about artificial waterways. Today, courts recognise a significant variety of easement laws. However, the four types of easements form the bulldog block of all the newly emerging easements. 

There is a negative and affirmative easement. Negative easement disallows the conduction of any unlawful or prohibited activity on private property. On the other hand, the positive easement allows an individual’s property usage for a specific purpose. An easement has a dominant and servient estate. 

The dominant estate refers to the individual or entity benefitting from the easement. In contrast, servient estate refers to the entity providing the benefits. In addition, an easement may be public or private. Public easement allows permission to the public for using a property. Private easement, on the other hand, is enjoyed by private individuals or entities. 

What is Covenant?

In its most basic sense, a covenant refers to the promise to participate in or refrain from performing a certain action. A covenant was differentiable from an ordinary contract by the presence of a seal. Covenant is similar to a contractual condition. The agreement may be negative or positive. 

A negative covenant refers to a law that prohibits an individual from engaging in a particular act. On the other hand, an affirmative covenant refers to a law that allows permission to engage in a specified action. Covenants related to land are real covenants. Real covenants form a massive proportion of the land covenants. 

Covenants may exclude certain sections of the population based on race, religion, or ethnicity. They are mostly the disadvantaged or marginalised communities. Title covenants refer to the agreement that ensures that an individual receives the entity that he bargained. Covenants come into existence for the benefits of common interest. 

Another example is the limitations on the measurement of a building to be constructed in a particular area. The land may be burdened or benefitted. Thus, covenants are ideally the restrictions or benefits received for an action. 

Main Differences Between Easement and Covenant 

  1. An easement refers to a non-possessory right that allows an individual to enter into or use the property of another individual without owning it. On the other hand, a covenant refers to the promise to participate in or refrain from performing a particular action.
  2. An easement comprises a dominant and servient estate. In contrast, a covenant consists of restricted land and benefited land.
  3. Easements are generally affirmative. On the other hand, covenants are commonly negative. 
  4. Easements cannot be imposed against future owners of the land. In contrast, covenants may be imposed against future owners of the land. 
  5. An example of an easement is the provision of fishing in a private pond. On the other hand, an example of a covenant is the limitations on a building to be built in a particular area.

Conclusion

To conclude, easement and covenant vary in their definition, nature, and components. Easements provide accessibility to the property of another individual. There are four types of easements: right of way, easements of light and air, easements of support, and rights about artificial waterways. Covenants may be burdened or benefitted.

Easements cannot be imposed against future owners of the land. In contrast, covenants may be imposed against future owners of the land. Both easements and covenants can be affirmative or negative. Thus, easement and covenant have more differences than similarities. 

References

  1. https://books.google.com/books?hl=en&lr=&id=iYNMpznJGeEC&oi=fnd&pg=PR5&dq=covenant+vs+easement&ots=A4VRV3YH63&sig=S0Ssy8WGkkV-a0y1i9wRyqaADTw 
https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/waslee43&section=23
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