Book Review: Restatement of the Law Third
| Publication year | 2021 |
| Pages | 160 |
75 CBJ 160. Book Review: Restatement of the Law Third
In 1982, Susan F. French of the UCLA Law School wrote an insightful and cogent article, Toward a Modern Law of Servitudes: Reweaving the Ancient Strands, urging the adoption of a more modern view of the tangled and sometimes noisome laws of servitudes.(fn1) In 1987, Professor French prepared a proposal to the American Law Institute for a new approach to the laws of servitudes,(fn2) and was duly appointed as the Reporter for this daunting task.
The law of servitudes had not been visited by the Restatements of the Law since 1944, when Oliver S. Rundell acted as Reporter for the fifth and final volume of the original Restatement of Property.(fn3) That Restatement did nothing to clarify, and continued the confusion of the law.
In first-year Property I, in law school after law school, property professors approached the section of the course on servitudes, or covenants, easements and profits that ran with the land, with trepidation and terror. The students exited that section with absolute confusion, hoping to never have that topic brought to their attention again.(fn4)
Unfortunately, transactional lawyers who deal in real property, litigators who litigate over land rights, environmental
lawyers dealing with conservation, preservation and environmental safe harbor covenants, trusts and estate lawyers dealing with real property estates, as well as the title lawyers who would be expected to know about these things, all run into what Susan French described as "servitudes law [which] provides a mechanism for tying rights and obligations to land so that they pass automatically to successive owners and occupiers."(fn5)
All hoped that the forms that were being followed if not blindly, then with very dim vision, were trustworthy, in that the original drafter in generations past had successfully and correctly dealt with "horizontal and vertical privity," "affirmative versus negative covenants," "limits on benefits in gross," "rights of third party beneficiaries," "covenants enforced as equity rather than law" and that most fearsome and illogical of doctrines, "touch and concern."
Professor French herself had described the law of servitudes as "the most complex and archaic body of American Property law remaining in the twentieth century,"(fn6) and...
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