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Editors' Synopsis: In this Article, the author provides an overview of the modern law of servitudes and surveys the changes to traditional servitudes law brought about by the 2000 Restatement (Third) of Property: Servitudes. The author explains how the new Restatement simplifies and clarifies this body of law, providing greater freedom to property owners while safeguarding the public interest.
The law of servitudes in the mid-twentieth century was aptly described as "the most complex and archaic body of American property law remaining in the twentieth century,"1 or as one observant commentator lamented, "an unspeakable quagmire" from which one never escaped unscathed.2 The American Law Institute's new Servitudes Restatement is designed to change that. Published in May 2000, the Restatement clears away doctrinal tangles that have accumulated over centuries to restate servitudes law to meet the needs of the twenty-first century. This Article provides an overview of the modern law of servitudes and highlights changes in traditional servitudes law.
Despite the many changes this Restatement will bring to the way we think about and teach servitudes law, it leaves intact the essential core of this body of law. At its core, servitudes law provides a mechanism for tying rights and obligations to land so that they pass automatically to successive owners and occupiers. By simplifying, clarifying, and rationalizing the law, the Restatement makes it easier to use servitudes for the important roles they play in modern land development. Servitudes provide stable arrangements for financing services and infrastructure, collective management of privately-owned common resources, and privately-created land use restrictions. At the same time, the Restatement retains the courts' traditional oversight role, safeguarding the public interest in maintaining the utility of land resources.3
I. OVERVIEW OF THE RESTATEMENT
A. Unified Approach
Instead of treating easements, profits, and covenants as separate and independent bodies of law, the Restatement treats them as different types of servitudes governed by a single body of law. When one rule appropriately governs all types of servitudes, only this one rule is stated, even though traditional servitudes law may have provided two or more rules covering the same subject.4 When different types of servitudes require different rules, those rules are stated within the overall framework of a unified body of law.5
B. Servitude Categories