Carol M. Rose
University of Arizona - James E. Rogers College of Law
April 25, 2011
RESEARCH HANDBOOK ON THE ECNOMICS OF PROPERTY LAW, p. 296, Kenneth Ayotte & Henry E. Smith, eds., 2011
Arizona Legal Studies Discussion Paper No. 09-13
Traditional servitudes running with the land bristled with complex legal limitations, but those limitations served three comprehensible overlapping goals: assuring that potential future landowners would learn about servitude obligations, that they could renegotiate obligations, and that the obligations themselves served useful purposes. This chapter argues that changes in recording and equity jurisprudence permitted simplification of servitude law. But it further argues that simplification has had dynamic effects: developers and other real estate innovators have responded by "pushing the envelope," extending servitudes into new areas, ultimately re-creating, in different guises, the problems addressed by older servitude law. It illustrates this dynamic with three different types of servitudes: the rise and demise of racially restrictive covenants; the use of servitudes in common interest communities; and the new uses of servitudes for conservation purposes.
Number of Pages in PDF File: 59
Keywords: servitudes, racial restrictions, common interest communities, conservation easements, covenants
JEL Classification: K11, K32Accepted Paper Series
Date posted: April 1, 2009 ; Last revised: April 27, 2011
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