Servitudes — Determine enforceability of servitudes

Historical Context & Motivation

The law of servitudes represents one of the oldest and most practically significant areas of real property doctrine, governing how private agreements about land use can bind not just the original parties but also their successors in interest. English common law struggled for centuries with the tension between two competing values: the freedom of landowners to make binding agreements about land use, and the policy against burdening land with obligations that future owners never personally undertook. The resulting doctrinal framework — which distinguishes among real covenants, equitable servitudes, and easements — evolved over several pivotal centuries of Anglo-American jurisprudence, ultimately producing the multi-element tests that remain central to bar examination analysis today.

Despite the Restatement's effort to simplify the law, the bar examination continues to test the traditional framework, requiring students to analyze enforceability through distinct doctrinal lenses depending on whether the plaintiff seeks damages at law (real covenant analysis) or injunctive relief in equity (equitable servitude analysis). The central question this lesson addresses is deceptively simple: when does a promise about land use bind someone who was not an original party to the agreement? The answer requires mastery of multiple overlapping but distinct sets of elements.

Core Principles & Definitions

Before analyzing enforceability, one must understand the taxonomy of servitudes. A servitude is any nonpossessory interest in land that obligates the possessor of a burdened estate to permit or refrain from doing something, or that grants a right to use another's land. The three principal categories — easements, real covenants, and equitable servitudes — share the common feature of attaching obligations or benefits to land rather than to persons. However, the requirements for enforcing each against successors differ in critical ways, and the remedy sought often determines which doctrinal framework applies.

Visual Explanation — Elements of Enforceability

The visual makes clear why the equitable servitude doctrine, established in Tulk v. Moxhay, was such a landmark development. By removing the privity requirement, equity courts dramatically expanded the universe of enforceable land-use restrictions. A plaintiff who cannot establish horizontal privity (for example, because the covenant was created between neighbors rather than in connection with a land transfer) can still obtain injunctive relief if the remaining four elements are satisfied. This structural difference explains why many bar examination questions ask students to analyze the same set of facts under both frameworks — the covenant may be enforceable as an equitable servitude even when it fails as a real covenant at law.

Deep Dive — The Elements of Running

Writing (Statute of Frauds)

Because servitudes are interests in land, they generally must satisfy the Statute of Frauds. The writing must identify the parties, describe the burdened and benefited parcels with reasonable certainty, and set forth the terms of the servitude. A critical exception exists for equitable servitudes: under the doctrine of implied reciprocal servitudes (also called the "common scheme" doctrine), a court may enforce a restriction against a lot in a subdivision even if the specific deed to that lot does not contain the restriction, provided a common scheme of development existed at the time the subdivider began selling lots and the purchaser had notice of the scheme. This exception applies only to equitable servitudes — real covenants at law always require a writing.

Intent to Bind Successors

The original covenanting parties must have intended the servitude to bind successors in interest, not merely the original parties themselves. Courts look for express language in the instrument, such as "this covenant shall run with the land" or references to "heirs and assigns." However, the absence of such magic words is not dispositive; courts will consider all circumstances surrounding the agreement to determine whether the parties intended the obligation to pass with the land. On the bar exam, the intent element is usually straightforward — most questions present language that clearly manifests (or clearly fails to manifest) an intent to bind successors.

Touch and Concern the Land

The touch and concern requirement is the most conceptually elusive element. A covenant touches and concerns the land when it makes the land itself more useful or valuable to the benefited party, or when it restricts the use of the burdened land in ways related to the land's enjoyment. The classic test, drawn from Bigelow's formulation, asks whether the covenant affects the parties as landowners rather than merely as individuals. Promises to maintain fences, restrict building height, or preserve land for residential use clearly touch and concern. By contrast, a promise to pay a sum of money unrelated to the land's use — for example, a covenant to pay the promisee's personal debts — does not touch and concern. The Restatement (Third) replaces this element with a more flexible "reasonableness" inquiry, but the traditional test remains the bar exam standard.

Privity of Estate

Privity is the element that most frequently determines whether a covenant is enforceable as a real covenant at law. There are two types. Horizontal privity exists between the original covenanting parties and requires that the covenant was created in connection with a conveyance of an estate in land — typically a grantor-grantee relationship at the time the covenant was made. If two neighbors simply agree to a covenant without any simultaneous land transaction between them, horizontal privity is absent, and the covenant cannot be enforced at law (though it may still be enforced in equity). Vertical privity concerns the relationship between the original party and the successor. For the burden to run, vertical privity requires that the successor hold the entire estate held by the original covenantor (e.g., the full fee simple, not merely a lease or life estate). For the benefit to run, any successor interest — even a partial one — suffices. This asymmetry is frequently tested.

Notice

A subsequent purchaser is bound by a servitude only if she had notice of it. Notice comes in three forms. Actual notice means the purchaser actually knew of the servitude. Constructive notice arises from proper recording in the chain of title — a purchaser is charged with knowledge of all recorded instruments in the grantor-grantee index. Inquiry notice exists when the physical condition of the land or the neighborhood would prompt a reasonable purchaser to investigate further — for example, if every home in a subdivision is single-family, a purchaser should inquire whether restrictive covenants apply. Notably, a bona fide purchaser for value without notice takes free of an unrecorded servitude, which is why recording is essential to preserving enforceability against successors.

Defenses and Termination of Servitudes

Even when all elements of enforceability are satisfied, a servitude may be rendered unenforceable through various defenses. Understanding these defenses is critical for bar examination analysis because the fact pattern may establish all the elements for running but then introduce facts triggering one or more termination doctrines. The diagram below illustrates the principal defenses and their relationship to the lifecycle of a servitude.

Worked Example — Analyzing Enforceability

Consider the following fact pattern, typical of a bar examination question: In 2005, Owner conveys Lot 1 to Buyer by deed that includes a covenant stating: "Buyer, for herself and her heirs and assigns, covenants that Lot 1 shall be used only for residential purposes, and this covenant shall run with the land for the benefit of Owner's retained Lot 2." The deed is properly recorded. In 2015, Buyer conveys Lot 1 to Successor by general warranty deed, but the deed from Buyer to Successor does not mention the residential restriction. Successor begins constructing a commercial building. Owner's heir (who inherited Lot 2) sues Successor, seeking both damages and an injunction.

Comparing Servitude Types

One of the most common bar examination techniques is to present a single fact pattern and require analysis under multiple servitude theories. The table below consolidates the critical distinctions among the three primary servitude types, highlighting where requirements overlap and where they diverge. A firm grasp of this comparison enables rapid issue-spotting and efficient analysis under exam conditions.

Connection to Advanced Doctrine — Common Scheme and Third-Party Beneficiaries

Two advanced doctrinal issues frequently appear in more difficult bar examination questions and deserve attention. The first is the implied reciprocal servitude doctrine, which arises in subdivision contexts. When a developer sells lots pursuant to a common scheme of restrictions — typically evidenced by a recorded plat or a pattern of including identical restrictions in deeds — courts may imply a reciprocal servitude against lots whose deeds do not contain the restriction, provided the purchaser had notice (actual, constructive, or inquiry) of the common scheme. The second is the question of third-party beneficiary enforcement: can a neighboring lot owner who was not an original party to the covenant enforce it? Courts generally permit enforcement by third-party beneficiaries in the subdivision context, treating the common scheme as creating mutual servitudes that benefit all lots in the subdivision.

Practice Problems

Summary — Enforceability of Servitudes