November 2nd, 2015 — By — In Articles

Easements and Restrictive Covenants: When the Government Takes Without Taking

When most people think about eminent domain and the condemnation of private property, they imagine the government acquiring a citizen’s private property and converting it to a public use. While this is often the case, it is not the only way that the government can acquire private property.

Governments may claim “non-possessory” rights in private land. Such rights allow the government to either (i) use, or (ii) place restrictions on a landowner’s use of private property.

Understanding Easements and Restrictive Covenants

Two of the most common types of non-possessory property interests are easements and restrictive covenants.


When the government (or, in some cases, a private entity) needs access to private property, it may exercise its power of eminent domain to do so.   .  In broad strokes, an easement is the legal right of one party to use or access someone else’s property, whether that be over, under or through the land. Easements are limited to certain, specified purposes. So, if the government or a private entity wishes to use eminent domain to obtain an easement on your property, it must spell out how, where, and why it intends to use your land.

TransCanada’s efforts to clear the way for the Keystone XL Pipeline provide a good example.  Over the past several years, TransCanada’s attorneys have been seeking to obtain easements on private property in Nebraska and across the West so that TransCanada can lay its pipeline if and when it receives government approval. Other examples of easements obtained by government agencies through the eminent domain process include easements for:

  • Utilities – such as water, sewer or electrical transmission lines;
  • Sidewalks, driveways or other access above or below ground; or
  • For construction purposes – a temporary use of the private property during the construction of a public project.

Restrictive Covenants

While an easement provides a right to use someone else’s land, a restrictive covenant places limits on how an owner can use his or her own property. A recent case out of New York provides an interesting example.

Blue Island Development, LLC v. Town of Hempstead, is an inverse condemnation case that arose out of land use restrictions placed upon a proposed condominium development on Long Island. Blue Island Development acquired a piece of waterfront land improved with an old oil storage facility.  Blue Island intended to remediate the contamination and construct condominiums.  The developer petitioned for a zoning change so that it could convert the property’s use into condos. The Town of Hempstead granted the change, but conditioned its grant upon the developer agreeing to sell (rather than lease) all of the individual units. This is an example of a restrictive covenant.

Other examples of restrictive covenants include:

  • A prohibition on building on private property;
  • A restriction on constructing buildings above a certain height; or
  • Limiting the purposes for which land can be used.

Challenging Easements and Restrictive Covenants

Like condemnations that involve taking ownership of private property, landowners have the ability to challenge the government’s exercise of eminent domain to acquire easements and actions to establish restrictive covenants or control land use.

For example, in the case discussed above, Blue Island sought a modification of the covenant which the Town subsequently denied.  Blue Island filed an action for administrative relief and declaratory judgement alleging the denial of a modification to the covenant effected an unconstitutional taking of private property.  In its complaint Blue Island argued that the restrictive covenant was improper because:

  • It did not advance a legitimate government interest; and
  • It denied Blue Island an economically viable use of its land.

If you are facing an eminent domain action seeking to acquire easement rights or your use of your property has been frustrated by land use  restrictions or a restrictive covenant, an experienced attorney will be able to help you fight to protect your constitutional rights. To speak with an eminent domain attorney, call (877) 367-6963 or request a consultation online today.

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