[WSBARP] Transfer of Dominant Estate Interest in Negative Easement (Covenant)

[Michael A. Padilla]

Hello, esteemed colleagues, I’m looking for any case or commentary supporting a dominant estate’s ability to transfer or convey to an adjoining landowner, that right to enforce a negative easement (covenant) against the servient estate.

In other words, is there any authority or commentary that a deed conveying only the dominant estate’s interest in the negative easement to an adjacent landowner, without a resulting deed of a percentage interest in the dominant estate parcel, would be valid.

The negative easement is appurtenant (runs with the land), is not abandoned, and imposes building restrictions on the servient lot.

Both the dominant estate’s parcel and the target transferee’s parcel adjoin the servient parcel.

From the servient estate’s perspective, it should not matter which adjoining landowner may enforce the negative easement rights; the result is still the same (must abide by building restrictions).  Yes, that is just an argument.

The dominant estate owner does not wish to enforce their negative easement rights themselves, but does wish to provide the adjoining landowner that right.

The dominant estate is not interested in doing a Nominee Agreement to grant an agency right to the adjacent owner to enforce the dominant estate’s interest.  And here, deeding a percentage interest in the dominant estate’s parcel to the adjacent landowner is not feasible.

Thanks all, for any comments or suggestions.


Michael A. Padilla | Senior Counsel
      Barrister (England and Wales)

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