Property Law. An affirmative easement is an easement which gives the owner of the dominant tenement the right to use the servient tenement, or to do some act thereon, which would otherwise be unlawful.
“Appellant’s access easement is an affirmative easement, that is, it authorizes appellee to do something which appellee would otherwise not be entitled to do.” Avery Development Corp. v. Village by the Sea Condominius Apts., Inc., 567 So.2d 447, 449 (Fla. 1990)
Easements are described as being “affirmative” easements when they convey privileges on the part of one person or owner of land (the “dominant tract”) to use the land of another (the “servient tract”) in a particular manner or for a particular purpose. U.S. v. Blackman (2005) 270 Va. 68, 76 (2005).
An affirmative easement “creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.” An affirmative easement is not considered to be a “restriction” affecting the use of real property. Patterson v. Paul, 448 Mass. 658, 663 (2007).
Affirmative Easement vs. Negative Easement
“An affirmative easement is one which grants the owner of the dominant estate the right to make active use of the servient estate or to do some act thereon or in respect thereto which, were it not for the easement, he would not be privileged to do or which would otherwise be unlawful . . . A negative easement, on the other hand, is a right in the owner of the dominant estate to restrict the owner of the servient estate in the exercise of the latter’s general and natural rights to property. In other words, a negative easement does not entitle the owner of the dominant tenement to any use or enjoyment of the land subject to the easement to which he would not be entitled if the easement did not exist, but rather it permits him to limit or prohibit the owner of the servient estate from doing acts upon it which, were it not for the easement, the latter would be privileged to do.” Rahabi v. Morrison, 440 N.Y.S. 2d 941, 946 (1981)