Skip to content
Real Law Society

Reading Room

Restatement

Restatement (Third) of Property: Servitudes

Editorial summary. The Restatement (Third) of Property: Servitudes, approved by the American Law Institute in May 2000, replaces the classical tripartite division of easements, real covenants, and equitable servitudes with a unified law of servitudes. It liberalizes the requirements for creation and running of servitudes, brings the equitable-servitude doctrine into a single framework with easements and covenants, and modernizes the rules for modification and termination. Reporter Susan French.

Citation: Restatement (Third) of Property: Servitudes (Am. L. Inst. 2000)Jurisdiction: United StatesEffective: 2000-05-17

Text

Restatement text and comment.

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.

Purpose

Restatement text and comment.

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.

Scope

Restatement text and comment.

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

Subject Matter

Restatement text and comment.

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).

Restatement text and comment.

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.

Restatement text and comment.

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.

Restatement text and comment.

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).

Restatement text and comment.

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.

Judicial Use

Restatement text and comment.

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).

Restatement text and comment.

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.

Restatement text and comment.

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).

Restatement text and comment.

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.

Revision history

  • 2000-05-17 — Approved by the ALI Membership; published in two volumes.

Related Publications

Editorial articles from Real Law Society Press that discuss this authority.

Canonical source: https://www.ali.org/publications/show/property-servitudes/
Table of contents
Established · MMXXVRead Law. Not Lore.™Vol. I — Folio I