Restatement (Third) of Property: Servitudes
§ 2.1 Types of Servitudes: Easements, Profits, and Covenants
Summary
Section 2.1 distinguishes between the three types of servitudes: easements, profits, and covenants. An easement creates a nonpossessory right to enter and use land in the possession of another. A profit creates a right to enter and remove resources (timber, minerals, game) from land in the possession of another. A covenant is a servitude that is neither an easement nor a profit—typically a promise respecting the use of land.
Easements can be affirmative (granting the right to do something on another’s land) or negative (restricting what the landowner can do with their own land). Negative easements were traditionally limited to a small number of recognized categories, but the Restatement’s servitude framework allows greater flexibility in creating restrictive interests.
The practical importance of these distinctions has diminished under the Restatement’s unified approach, but they remain relevant for determining available remedies and for understanding how courts in different jurisdictions analyze property disputes. Some courts still apply different rules to easements and covenants, particularly regarding the requirements for interests to run with the land.
Key Elements
- 1Easement: nonpossessory right to use another’s land
- 2Profit: right to enter and remove resources
- 3Covenant: promise respecting land use that is not an easement or profit
- 4Easements may be affirmative or negative
- 5Distinctions affect remedies and enforcement mechanisms
Practical Application
Real estate attorneys must classify servitudes correctly to draft enforceable instruments and advise clients about their rights. Easements are commonly used for access roads, utility lines, and drainage. Profits govern mineral and timber rights. Covenants are the backbone of homeowners association restrictions, subdivision controls, and commercial lease restrictions on use.
Exam Relevance
Professors test classification of servitudes to ensure students understand the different characteristics of each type. A typical question presents a property interest and asks students to classify it and explain the consequences. Key distinction: easements and profits involve physical use of land, while covenants involve promises about how land will or will not be used.