Land-Use Control

A number of restrictions on land are a result of actions by government units. Many restrictions, however, are created by land developers. Such devices take several forms and can be either positive or negative in nature. They include defeasible fees, EASEMENTS, equitable servitudes, and restrictive covenants.

Defeasible Fees In defeasible fee estates, the grantor gives land to the grantee, subject to certain conditions. For example, A might convey a parcel of land to B, provided that it be used for school purposes. The effect of the defeasible fee is that it restricts the use of the property by the possessor. Failure to observe the conditions causes the property to revert to the grantor. Estates of this type are no longer favored in most jurisdictions, because they make the transfer of land cumbersome and do not take into account unforeseen situations. The limited scope of defeasible fees makes them of limited value.

Easements Easements are rights to use the property of another for particular purposes. A common type of easement in current use is the affirmative grant to a telephone company to run its line across the property of a private landowner. Easements also are now used for public objectives, such as the preservation of open space and conservation. For example, an easement might preclude someone from building on a parcel of land, which leaves the property open and thereby preserves a park for the public as a whole.

Equitable Servitudes Equitable servitudes are land-use restrictions enforceable in a court of EQUITY. They are created by the language of the promise in the form of a COVENANT (agreement) between two individuals. For example, suppose A owns a parcel of land on the edge of a city that A subdivides the parcel into ten lots, numbered 1 to 10. A then records a declaration of restrictions, limiting each of the ten lots to use solely for family dwelling, providing that only a single-family house may be built on each lot. A sells the lots to ten people, and each deed contains a reference to the declaration of restrictions by record book and page number, coupled with a provision that the person purchasing the lot and all successive purchasers of the lot are bound by the restrictions.

Restrictive Covenants Restrictive covenants are provisions in a deed limiting the use of the property and prohibiting certain uses. They are similar in effect to equitable servitudes, but restrictive covenants run with the land because the restrictions are contained in the deed. Restrictive covenants are typically used by land developers to establish minimum house sizes, setback lines, and aesthetic requirements thought to enhance the neighborhood. The legal differences between equitable servitudes and restrictive covenants are less important today, as courts have merged the terms into one general concept.