Nonpossessory interest in land
The term ‘Nonpossessory interest in land’ is a legal term in law used for describing a category of rights for a person to use land which is within possession of another person. Therefore, these types of rights are typically developed in one of two methods. First, by expressed agreement between two or more parties, the land owner or owners, and the party seeking to own interest in the land. The second method is by a court order.
When it comes to nonpossessory interest in land, there is a total of five different variations of these rights under common laws, including:
- Equitable Servitude
- Restrictive covenants
Under law of real property, profit is a type of nonpossessory interest in land that is similar to that of an easement, providing the right of the holder to obtain natural resources, including minerals, petroleum, wild game and timber from the land. Therefore, due to the necessity for allowing land access for obtaining said resources, each profit also contains a relevant easement on the owner of profit for entering the land of the other party with the intent of gathering permitted resources.
This type of nonpossessory right allows the entrance or use of real property of another person, without the need of possessing it. Therefore, allowing the land owner (A) to give permission to another (B) to use the land for an agreed purpose. Similar to equitable servitudes and real covenants (U.S.), steps are taken to merge the concepts as servitudes by the Restatement (Third) of Property.
In addition, easements are useful in providing paths through multiple properties, giving individuals access to other resources or properties, for instance for fishing in a private pond or reaching a public beach through one’s property.
This nonpossessory right enables the official permission of using, owning, or conducting a certain documented activity on the land owned by another. The license could allow a party (A) to provide authorization to party (B) to use the permitted resources.
This nonpossessory right is similar to that of covenant law, but different depending on the remedy the plaintiff is seeking. The equitable servitude holder seeks injunctions, while a covenant holder seeks money damages. Although, in England covenant is referred to as equitable servitude if a party has been forbidden from specific use. Within the U.S., both affirmative and negative equitable servitudes are acknowledged.
In its simplest sense, covenant is the solemn promise to refrain or engage a certain action. Under common law, it had been distinguished as an ordinary contract with a seal. Due to the seal’s presence indicating unusual solemnity within the made promise of a covenant, common laws had enforced covenant, even without consideration. Whereas, in the U.S it is presumed as “implied covenant of good faith”.