Now available from
The American Law Institute
Replacing one of the most complex and archaic bodies of 20th century American law with a clear, comprehensive, rational body of law ideally suited for land use and development in the 21st Century, this long-awaited work simplifies, clarifies, and modernizes the law of servitudes (covenants, easements, and profits).
• These obsolete and redundant doctrines are eliminated
• Horizontal-privity requirement
• Ban on benefits in gross
• Prohibition against third-party beneficiaries
• Overlapping servitude categories are merged
• Equitable servitudes are now just covenants that run with the land
• Irrevocable licenses are now just easements
• Negative easements are now just restrictive covenants
• Archaic language is modernized and doctrine tailored to target problems and accomplish desired purposes
• Touch-or-concern is replaced by rules against
• Unreasonable restraints on alienation
• Unreasonable restraints on trade
• Unconscionable land-use arrangements
• Unreasonable burdens on fundamental constitutional rights
• Vertical privity is replaced by rules governing succession to servitude benefits and burdens by lessees, life tenants, and adverse possessors
Every lawyer whose practice involves real estate or
property-owner associations needs this Restatement.
Order your copy today!
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The American Law Institute’s
Restatement of the Law Third,
Property (Servitudes)
Recognizing the contemporary importance of servitudes in American land use and development, this authoritative new Restatement
• Devotes an entire chapter to the law governing residential common-interest communities and associations, including gated communities, condominiums, cooperatives, and subdivisions that require association membership
• Protects conservation and historic-preservation servitudes
• Provides that servitudes should be interpreted to carry out the intent of the parties and to allow flexibility for adapting to changes over time
• Removes obstacles to innovative development practices
• Allows modification and termination of obsolete servitudes
The American Law Institute’s (ALI’s) Restatement of the Law Third, Property (Servitudes), presents a comprehensive modern treatment of the law of servitudes that substantially simplifies and clarifies one of the most complex and archaic bodies of 20th century American law. Thirteen years in preparation and more than half a century after completion of ALI’s previous treatment of the subject in the original Restatement of Property, this new two-volume work responds to the needs of American society in the first part of the 21st Century for more coherent standards governing land development. Professor Susan F. French of the University of California at Los Angeles School of Law served as Reporter for the new Restatement.
Treating the law of easements, profits, and covenants for the first time as an integrated body of doctrine rather than as discrete doctrines governed by independent rules, this Restatement eliminates needless distinctions, archaic terminology, and obsolete requirements. The work is designed to allow both traditional and innovative land-development practices using servitudes without imposing artificial constraints as to form, or arbitrary limitations as to substance. The Restatement is enabling toward private governance, so long as there is full disclosure to prospective and current participants in a land development and so long as decisions are made according to established and fair procedures. At the same time, it preserves the judiciary’s traditional role of protecting the public interest in maintaining the social utility of land resources.
Servitudes underlie all common-interest communities, and since these communities play such an important role in providing housing in America, an entire chapter, Chapter 6, is devoted to interpreting and applying the servitudes that provide their "constitution," regardless of the ownership and organizational forms used. This Chapter marks an important step in the development of the law governing residential common-interest communities and their associations. It provides a more comprehensive statement of common-law principles for resolving disputes arising out of the creation and operation of such communities than any previously attempted. The Chapter provides both a useful source of rules for questions left uncovered by statute, as well as principles and policies that will prove useful in interpreting the applicable statutes. The Restatement also covers individual and neighborhood easements and covenants.
The new Restatement is attentive as well to the growing interest in conserving and preserving natural, historical, and cultural resources and to the increasing use of conservation and preservation servitudes as an important means to that end. The special considerations that apply to conservation and preservation servitudes are separately treated in § 1.6 (definitions), § 7.11 (application of changed-conditions doctrine), and § 8.5 (enforcement).
Substantial simplification has been achieved throughout this Restatement by eliminating the horizontal-privity requirement and limitations or prohibitions on the use of benefits in gross, thus removing the distinctions between real covenants and equitable servitudes and the distinctions between negative easements and restrictive covenants. Additional simplification has been made possible by recognizing that an irrevocable license to use land is an easement. As a result, the new Restatement recognizes only three categories of servitudes: profits, easements, and covenants, all of which may be enforced by legal or equitable remedies as appropriate to the particular case.
Significant clarification has been achieved in two areas that have long bedeviled practitioners involved with covenants law:
• the touch-or-concern doctrine and
• the vertical-privity doctrine.
Although both doctrines, unlike the horizontal-privity doctrine, played useful roles, their archaic terminology made them difficult to understand or use, and both operated imperfectly.
The touch-or-concern doctrine operated both to impose substantive limits on the kinds of arrangements that could be made to run with the land and to provide a de facto method of terminating affirmative covenants. It did the job poorly, however. Its purpose was never clearly understood; the language tended to divert attention away from the question whether the servitude posed such a threat of harm that it should not be allowed; and it interfered with innovative types of land development by casting doubt on the validity of affirmative covenants and other servitudes that did not directly involve physical use of land.
Both roles of the touch-or-concern doctrine are retained in this Restatement, but in a much more direct form. The kinds of arrangements that can be implemented with servitudes are determined by the rule stated in § 3.1, that a servitude is valid unless it is illegal, unconstitutional, or violates public policy. This rule shifts the burden to the person who seeks to avoid enforcement of the servitude to establish that it is an arrangement that should not be allowed to run with the land. Section 3.1 thus removes the impediment to innovative land development posed by the old touch-or-concern doctrine without sacrificing the judiciary’s ability to eliminate servitudes that create unreasonable risks of social harm. The de facto termination role played by the touch-or-concern doctrine has been replaced by the rule stated in § 7.12 that allows modification and termination of affirmative covenants to pay money or provide services under certain circumstances.
The vertical-privity doctrine has been replaced by rules that directly address the types of burdens and benefits that run to lessees, life tenants, adverse possessors, and other successors. These rules are easier to understand and provide more sensible results than the old doctrine in situations such as rental of condominium units.
Simplification and clarification are also made possible by the recognition in §2.6 that servitude benefits, including easements, may be granted to third parties, and that benefits in gross may be freely created and transferred unless contrary to the intent of the parties.
This long-awaited, authoritative new work combines clear black-letter provisions with extensive explanatory Comments, clarifying Illustrations, and detailed Statutory and Reporter’s Notes. The Comments thoroughly explicate the background, rationale, and applicability of the black-letter provisions, while the Reporter’s and Statutory Notes exhaustively document and analyze the sources for the black letter and Comments and provide a convenient basis for further research. The work is further enhanced by tables of cases, statutes, parallel tables showing the corresponding section numbers from the new and the previous Restatements, cross-references to the West Digest System and ALR annotations, and an Index. For more information, refer to the Abbreviated Table of Contents that follows.
2000, hardbound, 2 vols.; vol. 1 xxxviii, 640 pp.; vol. 2 xxxviii, 709 pp.; Order Code 1R3SEROTK, $195 plus shipping/handling--Order this item
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Abbreviated Table of Contents
Volume 1
Chapter 1. DEFINITIONS
1.1 Servitude Defined; Scope of Restatement
1.2 Easement and Profit Defined
1.3 Covenant Running with Land, Affirmative, Negative, and Restrictive Covenants Defined
1.4 Terms "Real Covenant" and "Equitable Servitude" Dropped
1.5 Appurtenant, In Gross, and Personal Defined
1.6 Conservation Servitude and Conservation Organization Defined
1.7 General-Plan Development Defined
1.8 Common-Interest Community Defined
Chapter 2. CREATION OF SERVITUDES
2.1 Creation of a Servitude
2.2 Intent to Create a Servitude
2.3 Necessary Parties to Creation of a Servitude
2.4 Horizontal Privity Is Not Required to
Create a Servitude
2.5 Estates or Servitudes Burdened and Benefited by a Servitude
2.6 Creation of Benefits in Gross and Third-Party Beneficiaries
2.7 Formal Requirements (Statute of Frauds)
2.8 Failure to Comply with the Statute of Frauds
2.9 Exception to the Statute of Frauds
2.10 Servitudes Created by Estoppel
2.11 Servitudes Created by Implication
2.12 Servitudes Implied from Prior Use
2.13 Servitudes Implied from Map or
Boundary Reference
2.14 Servitudes Implied from General Plan
2.15 Servitudes Created by Necessity
2.16 Servitudes Created by Prescription:
Prescriptive Use
2.17 Servitudes Created by Prescription: Requirements
2.18 Acquisition of Servitudes by Governmental Bodies and the Public
Chapter 3. VALIDITY OF SERVITUDE ARRANGEMENTS
3.1 Validity of Servitudes: General Rule
3.2 Touch-or-Concern Doctrine Superseded
3.3 Rule Against Perpetuities Inapplicable
3.4 Direct Restraints on Alienation
3.5 Indirect Restraints on Alienation and
Irrational Servitudes
3.6 Unreasonable Restraints on Trade
or Competition
3.7 Unconscionability
Chapter 4. INTERPRETATION OF SERVITUDES
4.1 Interpretation of Servitudes
4.2 Supplementary Terms of a Servitude
4.3 Duration of a Servitude
4.4 Duration of Original Parties’ and Successors’ Obligations and Enjoyment Rights
4.5 Determining Whether a Servitude Benefit or Burden Is Appurtenant, In Gross, or Personal
4.6 Transferability of Servitude Benefits
4.7 Delegability and Transfer of Servitude Burdens
4.8 Location, Relocation, and Dimensions
of a Servitude
4.9 Servient Owner’s Right to Use Estate Burdened by a Servitude
4.10 Use Rights Conferred by a Servitude
4.11 Use of Appurtenant Easement or Profit to Serve Property Other Than Dominant Estate
4.12 Rights of Holders of Separate Servitudes
in Same Property
4.13 Duties of Repair and Maintenance
Volume 2
Chapter 5. SUCCESSION TO BENEFITS AND BURDENS OF SERVITUDES
5.1 An Appurtenant Benefit or Burden
Passes Automatically
5.2 Persons to Whom an Appurtenant Benefit
or Burden Runs
5.3 Affirmative Covenant Benefits and Burdens
That Run to a Lessee
5.4 Affirmative Covenant Benefits and Burdens
That Run to a Life Tenant
5.5 Running of Benefits to an Adverse Possessor Who Has Not Gained Title
5.6 Severability of Appurtenant Benefits
5.7 Devolution of Appurtenant Benefits and Burdens on Subdivision of the Property
5.8 Succession to Benefits and Burdens in Gross
5.9 Division of Benefits in Gross
Chapter 6. COMMON-INTEREST COMMUNITIES
Part A. Introduction
6.1 Application of Chapter
6.2 Common-Interest-Community Definitions
6.3 Power to Create a Common-Interest-Community Association
Part B. Powers of Common-Interest Communities
6.4 Powers of a Common-Interest Community: In General
6.5 Power to Raise Funds: Assessments, Fees, and Borrowing
6.6 Power to Manage, Acquire, and Improve Common Property
6.7 Power to Adopt Rules Governing Use of Property
6.8 Enforcement Powers
6.9 Design-Control Powers
6.10 Power to Amend the Declaration
6.11 Association’s Standing to Sue and Defend
6.12 Judicial Power to Excuse Compliance with Requirements of the Governing Documents
Part C. Duties and Liabilities of Common-Interest Communities
6.13 Duties of a Common-Interest Community to Its Members
6.14 Duties of Directors and Officers of an Association
6.15 Liability of Members for Association Torts
Part D. Governance of Common-Interest Communities
6.16 Representative Government
6.17 Voting Rights
6.18 Meetings and Elections
Part E. Relationship Between the Developer and the Common-Interest Community
6.19 Developer’s Duty to Create an Association
and Turn Over Control
6.20 Developer’s Duties to the Community
6.21 Developer’s Power to Waive Provisions
of the Declaration
Chapter 7. MODIFICATION AND TERMINATION OF SERVITUDES
7.1 Modification, Extinguishment, and Termination of Servitudes: General Rule
7.2 Termination on Expiration of Servitude
7.3 Modification or Extinguishment by Release
7.4 Modification or Extinguishment by Abandonment
7.5 Termination by Merger
7.6 Modification or Extinguishment by Estoppel
7.7 Modification or Extinguishment by Prescription
7.8 Modification or Extinguishment by Condemnation
7.9 Termination by Foreclosure Sale or
Bankruptcy Proceedings
7.10 Modification and Termination of a Servitude Because of Changed Conditions
7.11 Modification and Termination of a Conservation Servitude Because of Changed Conditions
7.12 Modification and Termination of Certain Affirmative Covenants
7.13 Modification and Termination of a Servitude Held in Gross
7.14 Extinguishment of Servitude Benefits Under Recording Act
7.15 Application of Recording Act to Modification or Termination of a Servitude
7.16 Servitudes Not Terminable Under Marketable-Title Acts
Chapter 8. ENFORCEMENT OF SERVITUDES
8.1 Right to Enforce a Servitude
8.2 Absence of Privity Does Not Determine Availability of Remedy
8.3 Availability and Selection of Remedies for Enforcement of a Servitude
8.4 Remedy for Condition Broken by Violation of General-Plan Restrictions
8.5 Enforcement of a Conservation Servitude Held by a Governmental Body or
a
Conservation Organization
Table of Cases
Table of Statutes
Parallel Tables Showing Corresponding Restatement Third and First Restatement Section Numbers
Table of Cross References to Digest System Key Numbers and ALR Annotations
Index
REPORTER
Susan F. French, University of California at Los Angeles School of Law, Los Angeles, California
CONSULTANT TO THE REPORTER
A. James Casner, Harvard University Law School, Cambridge, Massachusetts [Deceased 1990]
ADVISERS†
Curtis J. Berger, Columbia University School of Law, New York, New York [Deceased 1998]
Fred P. Bosselman, Chicago-Kent College of Law, Illinois Institute of Technology, Chicago, Illinois
William R. Breetz, Jr., Hartford, Connecticut
[from 1995]
Gurdon H. Buck, Hartford, Connecticut [from 1990]
John Cornyn, Austin, Texas; formerly Justice, Texas Supreme Court [from 1993]
David W. Craig, Judge, Commonwealth Court of Pennsylvania, Pittsburgh, Pennsylvania [to 1992]
Jesse Dukeminier, University of California at Los Angeles School of Law, Los Angeles, California
Robert C. Ellickson, Yale Law School, New Haven, Connecticut
Marvin Garfinkel, Philadelphia, Pennsylvania
Norman Geis, Chicago, Illinois
[from 1992; deceased 1996]
Dorothy J. Glancy, University of Santa Clara School of Law, Santa Clara, California
John D. Hastie, Oklahoma City, Oklahoma
Mendes Hershman, New York, New York
[Deceased 1992]
Thomas Woodward Houghton, Houston, Texas
Wayne S. Hyatt, Atlanta, Georgia [from 1990]
Thomas L. Jones, University of Alabama School of Law, Tuscaloosa, Alabama
Gerald Korngold, Case Western Reserve University Law School, Cleveland, Ohio [from 1991]
Frederick S. Lane, Boston, Massachusetts
Carol M. Rose, Yale Law School, New Haven, Connecticut
Stewart E. Sterk, Yeshiva University,
Benjamin N. Cardozo School of Law, New York,
New York [from 1995]
Michael F. Sturley, University of Texas School of Law, Austin, Texas [from 1989]
Lyman M. Tondel, Jr., New York, New York
[to 1989; deceased 1997]
Herbert P. Wilkins, Chief Justice, Supreme Judicial Court of Massachusetts, Boston, Massachusetts
EX OFFICIO†
Roswell B. Perkins, New York, New York
Chair of the Council, The American Law Institute
Charles Alan Wright, Austin, Texas
President, The American Law Institute
Geoffrey C. Hazard, Jr., Philadelphia, Pennsylvania
*Director, The American Law Institute
† As of May 12, 1998.
* Director Emeritus since May 20, 1999; succeeded as Director by Lance Liebman
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