Restrictive Covenants and Easements

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A restrictive covenant is a promise or an agreement to restrict the use or development of real property.  The land that is burdened by – or must comply with – the restriction is called the “burdened estate.”  The land, person, or entity that is benefitted by and may enforce the restriction is called the “benefitted estate.”

An easement is similar to a restrictive covenant in that it reflects a promise or agreement related to the use of real property.  An easement, though, grants the benefitted estate the right to use the burdened estate for a specified purpose.  For example, an ingress/egress or access easement allows the benefited estate to walk, drive, or ride across the burdened estate in a specific area.  If the ingress/egress is authorized to provide access to land owned by the benefitted estate, then the easement is considered to be “appurtenant” to that land.  The easement may also be said to “run with” the land – meaning the easement rights and burdens apply to the benefitted and burdened estates, regardless of who owns them in the future.  If an easement benefits a particular person instead of a piece of land, it is considered to be “in gross.”  See our easement blog for more information.

Restrictive covenants and easements are common in real estate.  A recent decision from the New York Supreme Court illustrates why you should contact the professionals at HLG to write and record them for you.

In U & ME Homes, LLC v. County of Suffolk, 72 Misc. 3d 1208(A), 148 N.Y.S.3d 682 (N.Y. Sup. Ct. 2021), the New York Supreme Court found that a covenant restricting the development of nearly six acres of land was not enforceable.

In 2000, when the County of Suffolk sold the land, it included the following line in its deed: “There shall be no development rights as to this parcel other than the right to construct a 50′ westward extension of Laurel Valley Drive.”  Ten years later, the then-current owner applied for a permit to build a house on the six acres. The town refused the permit, claiming the sentence quoted above was a restrictive covenant, running with the land, that prohibited development.

The court disagreed.  There were two fatal defects that precluded enforcement of the quoted language as a restrictive covenant. First, there was no evidence that the quoted sentence was intended to “run with the land.”  Typically, when a covenant is intended to be binding on future purchasers of the land, the deed will include language like:  “This covenant shall bind and benefit the heirs, successors, and assigns of the original parties hereto.”  This language was not in the County’s deed or any of the subsequent deeds thereafter.

Sometimes a court will infer an intent for a covenant to run with the land from the facts and circumstances, but not this time.

The second defect was that the quoted sentence did not identify the benefitted estate of the supposed restrictive covenant.  Without knowing who was supposed to benefit from the restriction, it was not clear who had the right to enforce the covenant.  Again, sometimes the court can review the facts and circumstances at the time the deed was written to figure this out.  For example, if the property is part of a subdivision, courts will generally conclude the other lots in the subdivision are the benefitted estates.  In theory, the covenant could have been “in gross,” meaning future landowners needed the County’s permission to lift or amend the restrictive covenant to build on the land.  Because the County did not include this language, or something like it, in the deed when it sold the land, the Court concluded there was no “benefitted estate.”  The County’s deed did not contain an enforceable covenant restricting development and the town erred in denying the landowner’s building permit.

Although New York court decisions are not binding in Washington, the outcome in a Washington court could easily be the same.

Contact the real estate attorneys at HLG to help you draft and record your agreement to use or restrict the use of your property.  We want to help you make sure the courts and future landowners understand and follow your intent.

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