What Are Easements and Covenants?
Almost every California property with a shared driveway, a utility line, or an HOA sits inside a web of easements and covenants most owners never read until there’s a dispute. Both tools manage how neighbors relate to each other, but they work differently.
Easements and covenants, in one sentence: an easement is a nonpossessory property right to use another’s land for a specific purpose, while a covenant is a promise about how land will or won’t be used — and the hard legal question for both is whether the right or promise binds future owners, not just the people who first created it.
Easements: A Right to Use, Not to Own
An easement doesn’t transfer ownership; it grants a limited right of use. California Civil Code § 801 lists the servitudes that attach to land, including rights of way, water rights, and rights to receive light, air, or support from adjoining land.
Easements come in two forms:
- Appurtenant. The easement benefits a specific parcel of land (the dominant estate) and burdens another (the servient estate). A driveway easement letting Lot 1’s owner cross Lot 2 to reach the street is appurtenant — it automatically transfers with Lot 1 when Lot 1 is sold, and automatically continues to burden Lot 2 when Lot 2 is sold.
- In gross. The easement is personal to a specific person or entity rather than tied to any parcel of benefited land — a utility company’s right to run power lines is a classic easement in gross. California courts generally disfavor easements in gross for individuals and often treat a bare personal permission as a revocable license instead, unless the parties clearly intended an assignable property right.
An easement can be created expressly by grant, or implied — from prior existing use, as recognized in Van Sandt v. Royster, 148 Kan. 495 (1938), where an implied easement arose because the use was apparent, continuous, and reasonably necessary at the time the properties were severed from common ownership.
Covenants: Promises That May (or May Not) Bind Successors
A covenant is a contractual promise touching the land — “no fences over four feet,” “residential use only,” “must belong to the HOA.” The hard question is always whether that promise runs with the land so it binds the next owner, who never personally agreed to anything.
For a covenant’s burden to run at common law — and largely still today — the following must be satisfied:
- Intent. The original parties intended the covenant to bind successors, not just themselves.
- Touch and concern. The covenant must relate to the use, value, or enjoyment of the land itself — a purely personal promise (like a promise to lend money) does not run even if recorded.
- Privity of estate. There must be the required relationship between the original covenanting parties and the successor bound by the covenant.
California Civil Code § 1468 sets out statutory rules for when covenants regarding land use and structures run with the land, alongside the common-law doctrine developed from cases like Tulk v. Moxhay (1848), the foundational English case allowing a restrictive covenant to bind a successor in equity where the successor takes with notice — even without strict privity.
California’s Extra Layer: Notice
California adds a requirement that trips up out-of-state practitioners and bar candidates alike: even a covenant that satisfies all the traditional common-law elements will not bind a successor who purchased without actual, constructive, or inquiry notice of it. This dovetails directly with the recording acts — an unrecorded, undiscoverable covenant may simply not be enforceable against a good-faith buyer, no matter how carefully it was drafted originally.
Easements vs. Covenants at a Glance
| Feature | Easement | Covenant |
|---|---|---|
| What it creates | A property right to use land | A promise about land use |
| Runs automatically? | Yes, if appurtenant | Only if intent + touch-and-concern + privity (and, in California, notice) are met |
| Easement in gross | Personal; often non-transferable | N/A |
| Enforcement | Injunction; damages for interference | Injunction; damages for breach |
| California-specific wrinkle | Courts disfavor easements in gross | Successor must have notice to be bound |
Why This Matters Beyond the Exam
Buyers, lenders, and landlords all run into easements and covenants constantly in California transactions.
Title and recording. An unrecorded easement or covenant risks being cut off as to a bona fide purchaser without notice. Anyone buying property with a shared driveway, a pipeline, or an HOA restriction should confirm those interests are recorded and within the chain of title — not just described by the seller.
Leasing. A landlord cannot lease away rights it doesn’t have. If a pipeline easement crosses the property, a tenant takes subject to it; if a covenant bars commercial use, leasing to a commercial tenant anyway risks an injunction and damages for breach.
Development. A developer buying land for a subdivision needs to identify every easement and covenant in the chain of title before platting lots, because appurtenant easements and validly running covenants will bind every future homeowner in the development, whether they know about them or not.
Worked Example
O owns two adjoining lots. O grants Lot 1’s owner, Priya, an express easement “to use the paved driveway on Lot 2 for ingress and egress.” The easement is properly recorded. O later sells Lot 2 to Marcus, who buys without ever independently checking the county recorder — he relies solely on the seller’s description of the property.
Question: Is Marcus bound by Priya’s driveway easement?
Analysis: Yes. The easement is appurtenant — it benefits Priya’s Lot 1 and burdens Lot 2 — so it runs automatically with Lot 2 regardless of who owns it. Because the easement was properly recorded, Marcus had constructive notice of it as a matter of law even though he didn’t personally check the record; “I didn’t look” is not a defense once an instrument is properly recorded within the chain of title. Marcus takes Lot 2 subject to Priya’s right to use the driveway, and he cannot unilaterally block or remove it without risking an injunction.
Common Mistakes to Avoid
- Assuming every easement automatically runs with the land — only appurtenant easements do; easements in gross typically do not transfer to a new owner of the burdened or benefited land.
- Forgetting the “touch and concern” requirement for covenants — a purely personal promise doesn’t run even when properly recorded.
- Overlooking California’s added notice requirement for covenants, which is stricter than some other states.
- Confusing easements (property interests that generally run automatically) with covenants (contractual promises that run only if strict requirements are met).
FAQ
What’s the difference between an easement appurtenant and an easement in gross?
An easement appurtenant benefits a specific parcel of land and automatically transfers with that parcel. An easement in gross is personal to an individual or entity and generally does not transfer to a new owner.
Does a covenant always bind the next owner who buys the property?
No. The covenant must meet the intent, touch-and-concern, and privity requirements, and in California the successor must also have actual, constructive, or inquiry notice of it.
How does recording affect whether an easement or covenant is enforceable?
Recording gives constructive notice to future buyers. An unrecorded easement or covenant risks being unenforceable against a bona fide purchaser who buys without actual or inquiry notice of it.
Key Takeaways
- An easement is a nonpossessory right to use land; a covenant is a promise about how land will be used.
- Easements appurtenant run automatically with both the benefited and burdened land; easements in gross generally do not.
- Covenants run only if the original parties intended it, the covenant touches and concerns the land, and privity of estate exists.
- California requires successors to have notice of a covenant before they can be bound by it — a stricter rule than pure common law.
- Recording is the practical tool that protects both easements and covenants against later bona fide purchasers.
This article is educational and is not legal advice. Consult a licensed California attorney about your situation.
Related guides
- recording acts and bona fide purchasers
- easements deep dive
- concurrent ownership and tenancy in common in California