House A is next door to House B. They are in very close proximity. Between them sits a garage that is attached to House A. However, the owners of house B have the right to use the garage and it's recorded in the deed.
I am correct in assuming this is an expressed affirmative easement appurtenant? What would make this a covenant.
I think it is a an affirmative easement appurtenant.
1) It's recorded in an instrument-- satisfies statute of frauds
2) gives you the right to be on the property and right of use (affirmative)
3) The garage = the servient tenement being burdened
4) House A = dominant tenement
3 + 4 = easement appurtenant
But if it is going to be a covenant:
-- the garage touches and concerns the land b/c it is on the property
-- intent is met: The covenanting parties must have intended that the covenant devolve on successors in
-- there is privity of estate-- A (burden) to B (benefit) in horizontal privity
-- most local statutes of frauds require a covenant to be in writing. That is satisfied here, b/c A granted use of the garage to B in an instrument