The law of property has long had two different mechanisms for neighboring landowners to formally agree to change how one parcel of land may be used to benefit the owner of another parcel of land: easements and covenants. During the 20th century, legislatures created a special type of easement known as a “conservation easement.” Easements and covenants both involve agreements recorded in a land deed that allow one owner either to use the property of another (“The owner of parcel A may walk across parcel B”) or to prevent a specific use (“The owner of parcel B will not erect a building that casts a shadow over the garden on parcel A during the summer”). But the law has separate rules for easements and covenants regarding who can make the agreement, what the agreement can require, and the circumstances under which a court can refuse to enforce the agreement.

As a general rule:

• Easements can enable any individual, organization, or government agency to secure private or public access along the shore;
• Conservation easements enable a government or land trust to prevent shore protection; and
• Covenants enable neighboring landowners and developers to prevent shore protection.[205]

We discuss each of these options in turn.

3.2.1.1 What is an Easement?

An easement is a property interest that enables someone other than the owner of the land to use the land in a specified way, such as walking or driving across it, running a power line or water line over it, or draining water from one’s own land.[206] If someone needs to change the contours of her own land (perhaps for a roadway near the property line) she may find it convenient to also change the contours of a neighbor’s land, in which case she may wish to obtain a grading easement from the owner. If someone wants her property to drain, she might obtain a flowage or drainage easement[207] entitling her to dig a drainage ditch across a neighbor’s land. Easements that give one person the right to do something on someone else’s land are known as “affirmative easements.” [208] Courts have traditionally allowed owners and other parties to create a diverse array of affirmative easements, because ensuring the right of one party to do something on someone else’s property facilitates commerce.

Easements that give one person the right to prevent the owner from doing something on her own land are known as “negative easements.” [209] Because restrictions of land use were thought to impair commerce,[210] courts traditionally voided negative easements other than those for light, air, view,[211] lateral support, and drainage[212]—especially when they did not directly benefit an adjacent property.[213] (Extremely noxious uses of land could be stopped as a nuisance.[214]) During the middle of the 20th century, there was not always a legally reliable way for a private landowner to permanently forgo development or other activities harmful to the environment.[215]

3.2.1.2 Rolling Easements as Conservation Easements

State legislatures responded by enacting statutes that specifically authorize conservation easements (as well as other special-purpose negative easements such as scenic easements and historic preservation easements).[216] Although there is some variation, these statutes[217] generally:

• Allow creation of easements in which the landowner agrees to avoid specific activities that might be harmful to the environment;
• Require the conservation purpose for the restriction to be clearly stated;
• Allow the easements to be temporary or permanent;[218] and
• Limit the ownership of conservation easements to government agencies and nonprofit conservation organizations

A rolling easement can be structured as a conservation easement with a relatively modest restriction, such as prohibiting shore protection structures and/or activities that increase the elevation of the land surface. Where such easements are obtained, the public or land trust is assured that wetlands or beaches can migrate inland as sea level rises, while the landowner is assured of the continued enjoyment of her property until the sea reclaims it. Therefore, in theory, developers and even some owners of existing homes may be willing to transfer a rolling easement for a modest price or as a condition of obtaining a permit for an important near-term activity. (For further elaboration on the economics, see Table 4 in Chapter 5.) This primer uses the term “shoreline migration conservation easement” to refer to a rolling easement implemented as a conservation easement, that is, a conservation easement that prohibits shore protection but that otherwise does not restrict the use of dry land. [219]

3.2.1.3 Covenants: An Approach Available to Developers and Ordinary Citizens

Landowners may wish to preserve natural shorelines in neighborhoods where neither conservation organizations nor government agencies are willing to own and manage conservation easements. For example, landowners with deep lots along an estuarine beach may prefer to tolerate a gradual loss of land rather than spend tens of thousands of dollars on a revetment that would also destroy their beach—but only if each can be assured that her neighbors will not build revetments either.[220] Or a developer may conclude that such a neighborhood will be best served if none of the owners are allowed to erect shore protection. But conservation easements are not an option because only land trusts and governments are allowed to own them.

Covenants that run with the land are a common way to bind landowners by a set of restrictions with reciprocal advantage to all.[221] (A “covenant” is a contract; “run with the land” means that the terms are written into the land deed and bind each successive owner.) Unlike conservation easements, which must have a conservation purpose, almost any reasonable restriction could be required by a covenant. So a covenant can prohibit shore protection for navigation[222] or even to ensure that the second row of homes eventually has waterfront property.

Covenants are often divided into two categories: legal covenants and equitable covenants (also known as equitable servitudes). This distinction dates back to before the American Revolution, when England had two independent court systems known as “Law” and “Equity.”[223] As a general rule, law courts award monetary damages for violating a covenant,[224] while equity courts can order enforcement of its requirements. [225] Law and Equity courts also set different criteria for when a covenant runs with the land. [226] The two court systems have been merged in all but two coastal states, but two sets of rules remain.[227]

An equitable covenant can be created if a developer writes a restriction that prohibits shore protection onto the deeds of all land sold within a subdivision. Alternatively, neighbors may agree to such a restriction and record it at the local land records office. [228] In either event, if one of the landowners or her heirs starts to engage in shore protection, the other neighbors can go to court to enforce the agreement with an order to restore the land to its original condition. As a general rule, however, courts decline to provide such “equitable relief” if doing so is inequitable—for example, when the enforcement does great harm to one party compared with the benefit to the other party.[229] If the loss of a home harms the homeowner more than it benefits her neighbors, the traditional approach of balancing equities will lead a court to not enforce the rolling easement. On the other hand, if the owner purchased the land at a discount, other owners have already given up their homes to the sea, or vacant land to which the house can be moved is available, the same court may view enforcement as equitable.

A legal covenant, by contrast, is generally enforced regardless of such subjective assessments. Because the remedy is monetary damages rather than a court order to dismantle the shore protection, a legal remedy is often not as effective at achieving the objective, unless the damages are great enough to motivate compliance. [230] Moreover, a legal covenant is not always as easy to create as an equitable covenant. In the case of a developer placing a restriction on a deed, a legal covenant would be created. But a simple agreement among neighbors generally does not create a legal covenant because legal covenants must be created through the sale of real property.[231] One way to avoid that problem is for the owners to mutually convey easements (which qualify as real property) to walk along the privately owned shoreline within (for example) 3 feet above mean high water, when the covenant is created.[232]