Servitudes Done 'Proper'ly: Propriety, Not Contract Law

Abstract

The law of servitudes has changed dramatically in the last hundred years. Legal scholars have been successful in documenting these changes in case law, but less successful in articulating a unified set of principles that guide the current law of servitudes. One explanation that received significant attention is the idea that efficient recording systems in the United States have liberated property owners from the constraints of traditional property laws disfavoring servitudes and have allowed these owners the broader freedoms of contract law. However, this explanation, and the sweeping common law reforms that flow from it, have not resonated with courts. Sometimes courts recognize a property owner’s broader powers to bind their property via servitudes without concern for horizontal privity, the touch-and-concern doctrine, or whether the servitude is a restraint on alienation, but sometimes they apply the traditional, limiting, rules that have governed for centuries in common law. Why do courts sometimes strictly apply the traditional rules of servitudes and sometimes jettison them for more permissive, vaguer rules?

In this Article, I will offer an alternative, descriptive framework for understanding contemporary servitudes premised not on a property regime as means of preference satisfaction guided by contract law, but rather, premised on a property regime as a means of proprietorial control guided by distribution of police powers to govern land between private owners, government actors, and quasi-government actors. In this framework, servitudes are sorted into two main categories: “traditional” servitudes where the dominant estate or benefiting parcel is separate from the burdened parcel and “community” servitudes where the benefit and burden of a servitude apply to the same piece of land and the servitude is a tactic of community governance. In traditional servitudes, the traditional rules still, by and large, apply to limit a land owner’s power to bind future owners of a burdened parcel. On the other hand, courts tend to validate community servitudes even though these servitudes do not neatly fall within the traditional servitude rules so long as they further a clear public purpose, they are created voluntarily by the original grantor, and subsequent owners take the burdened land with notice. To illustrate this framework, I will examine the most significant uses of servitudes in the last hundred years, what they do, why they are valid, and what they tell us about the police power to regulate land.

Keywords: Servitudes, Police Power, Community Servitudes, Preservation Servitudes, Affordability Covenants, Servitudes in Development Agreements, Conservation Easements,