Restatement (Third) of Property: Servitudes

Editorial note. The classical law of servitudes, as restated in Volume V of the First Restatement, imposed three distinct sets of formal and doctrinal requirements on easements, real covenants, and equitable servitudes. Twentieth-century American courts increasingly departed from those formalities under the pressure of common-interest developments, planned communities, and conservation easements. The Third Restatement, drafted from 1987 to 2000 under Reporter Susan French, systematized the accumulated departures and articulated a unified framework.

Editorial note. To restate the modern American law of servitudes in a unified form, to eliminate the technical distinctions among easements, real covenants, and equitable servitudes, and to provide a workable framework for common-interest communities.

Editorial note. Creation of servitudes; interpretation; running with the land; modification and termination; common-interest communities; conservation and preservation servitudes.

Editorial note. Chapter 1 (Definitions and Categories); Chapter 2 (Creation); Chapter 3 (Validity and Modification); Chapter 4 (Interpretation); Chapter 5 (Duration, Modification, and Termination); Chapter 6 (Common-Interest Communities); Chapter 7 (Enforcement); Chapter 8 (Duration; Extinguishment).

Editorial note. Black-letter rules followed by Comments, Illustrations, and Reporter's Notes. The Reporter's Notes are especially extensive and function as a scholarly treatise on the underlying doctrinal shift.

Editorial note. Directly supersedes Volume V (Servitudes) of the Restatement (First) of Property. Coordinated with the Restatement (Third) of Property (Mortgages) on encumbrances and with the Restatement (Third) of Property (Wills and Other Donative Transfers) on the transfer of encumbered interests.

Editorial note. The Third Restatement abandons the historical requirement of horizontal privity for covenants at law and merges the running-with-the-land inquiries for legal and equitable servitudes into a single functional test focused on intent, notice, and touch-and-concern (redirected under § 3.2 to a policy-based analysis of the burden).

Editorial note. The Restatement has been extensively cited in decisions concerning common-interest communities, conservation easements, and covenant enforcement. Many state courts have adopted its unified framework or particular sections.

Editorial note. Frequently cited on formation of servitudes (§§ 2.1–2.14), the run of benefits and burdens (§§ 5.1–5.4), interpretation of ambiguous servitudes (§§ 4.1–4.8), and modification or termination (§§ 7.1–7.15).

Editorial note. The Third Restatement, like all Restatements, is persuasive secondary authority. Where it departs from binding state precedent, the state precedent controls unless the Restatement is adopted.

Editorial note. See Restatement (First) of Property, Volume V (1944) (superseded); Uniform Common Interest Ownership Act (Unif. L. Comm'n 1982, as amended); Uniform Conservation Easement Act (Unif. L. Comm'n 1981).

Editorial note. Drafters of easements, covenants, and common-interest declarations rely on the Restatement's unified formulation. Its liberalized creation and interpretation rules materially affect drafting choices and litigation posture.