What is an Equitable Servitude?

An equitable servitude is a type of nonpossessory interest in a property, meaning that a person who does not possess a property has a specific right over it. Another example of a nonpossessory interest is an easement. In the case of equitable servitudes, both positive and negative rights are recognized, meaning that someone may have a right to specifically do or not do something on a given piece of land. The interest is attached to the property's deed and future owners of the property are required to respect it as long as they are aware of it.

When an agreement is initially made for an equitable servitude, it is usually written up and clearly defined for the benefit of all parties, as well as their successors. Equitable servitudes often arise when land is split for development or when land use is changing. It can be used in a variety of ways to extend rights to interested parties who may not own a material share in a piece of real estate. In the event the property is sold, the party buying the land must be notified about the equitable servitude, and the agreement may be designed to revert to descendants in the event that the original rightsholder dies.

When an equitable servitude is violated, people can file for injunctions to stop the violation. Someone who has an agreement to graze livestock on land and is fenced out, for example, can request a court order to remove the fencing or create a gate to make the land accessible to the livestock again. The judge can review the facts of the case and issue an injunction if it is deemed appropriate.

There are situations where an equitable servitude will not be enforced by injunction. If someone violates it without being aware, a judge will not enforce the right. Likewise, if violations have been occurring for a long time and no action has been taken, a judge may determine that by failing to protect their rights, people have lost them. If the right is believed to be abandoned or people fail to bring suit in a timely matter after a violation is noticed, it will also not be upheld.

When people purchase property, it is conventional to research the title to confirm it is clear and to identify any interests in the property that might have an impact on the value. People should ask for clarification if any surprises come up during this research phase. It is also advisable to confirm the property lines as recorded are the same as the apparent physical property lines and to take note of any deviations, like a neighbor's fence that has strayed over the property line.