The Touch and Concern Doctrine and the Restatement (third) of Servitudes: a Tribute to Lawrence E. Berger

• Publication year: 2021

77 Nebraska L. Rev. 653. The Touch and Concern Doctrine and the Restatement (Third) of Servitudes: A Tribute to Lawrence E. Berger

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Comment

Susan F. French*

The Touch and Concern Doctrine and the Restatement (Third) of Servitudes: A Tribute to Lawrence E. Berger

TABLE OF CONTENTS

I. Introduction .......................................... 653
II. A Tribute to Lawrence Berger .......................... 656
III. Road Map to a Disaggregated Touch and Concern
Doctrine in the Restatement (Third)................... 659
A. Protecting Land Values ............................. 661
B. Protecting Purchasers from Surprises ............... 662
C. Modification and Termination of Obsolete
Servitudes ......................................... 663
IV. Conclusion ............................................ 666

I. INTRODUCTION

Traditional servitudes doctrine requires that covenant burdens and benefits touch and concern the land if they are to pass automatically to successors of the original covenanting parties. The doctrine, which dates back to 1583, (fn1) applies regardless of the parties' intent, limiting the kinds of covenants that can be made into servitudes.

There is something intuitively appealing about the touch and concern doctrine of traditional servitudes law: limiting covenants that can run with the land to those that relate to the land-that touch or

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concern the land "in a substantial degree"(fn2) -seems to make sense. If they don't relate to land, why should they bind successors to the land who have not assumed the obligations? This intuitive sense, coupled with the euphonious character of the phrase, probably accounts for its persistence in our law. Nearly every case involving covenants contains a recital of requirements for creating a running covenant that includes intent, privity, and touch and concern.

Despite its widespread and persistent use, the new Restatement (Third) of Property: Servitudes has abandoned the touch and concern doctrine. Why?

Despite its seeming simplicity, the touch and concern doctrine has proved hard to apply, particularly with respect to covenants to pay money or to perform acts on land other than the burdened land. Many pages of scholarly journals have been filled with attempts to explain and rationalize the touch and concern requirement.(fn3) In recent years, particularly beginning in 1982, the doctrine has been subjected to wholesale attack. From one side, Richard Epstein attacked the doctrine on the ground that it allowed courts to interfere with freedom of contract.(fn4) From the other side, I attacked the doctrine on the ground that it was too vague, too difficult to understand, too easily manipulated, too easily used to mask analysis, and prone to lead courts and lawyers into error by failing to focus their attention on the real issues. Despite a spirited defense of the doctrine by Jeffrey Stake,(fn5) my position prevailed in the new Restatement, which has replaced the doctrine with a number of other rules and doctrines designed to fulfill many of the functions that have been ascribed to the traditional touch and concern doctrine.

It is not my purpose here to rehash the arguments for and against retention of the traditional touch and concern doctrine in the new Restatement. (fn6) Suffice it to say that all aspects that recent commentators

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found valuable about the traditional doctrine, save two,(fn7) have been

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retained in the new Restatement. Instead my purpose is, first, to pay tribute to Lawrence Berger's contribution to our current understanding of the touch and concern doctrine, and then to provide a road map to the new Restatement's incorporation of the functions previously attributed to the touch and concern doctrine.

II. A TRIBUTE TO LAWRENCE BERGER

Professor Rabin aptly described the law of real covenants and equitable servitudes when I first encountered it:

[T]he law in this area [real covenants and equitable servitudes] is an

unspeakable quagmire. The intrepid soul who ventures into this

formidable wilderness never emerges unscarred. Some, the smarter ones,

quickly turn back to take up something easier like the income taxation

of trusts and estates. Others, having lost their way, plunge on and

after weeks of effort emerge not far from where they began, clearly

the worse for wear. On looking back they see the trail they thought

they broke obscured with foul smelling waters and noxious weeds. Few

willingly take up the challenge again.(fn8)

The first time that I had to teach running real covenants and equitable servitudes was a nightmare.(fn9) The materials I had to work with were two lists of requirements, one for covenants to run at law, the other for equitable servitudes. I also had some cases that didn't seem to make any sense. In fact, the lists didn't make much sense either. The lists looked like this:

Covenants at law:

Equitable Servitudes:

Intent

Intent

Writing

Notice

Horizontal Privity

Lease (England)

Easement (Mass.)

Deed (elsewhere)

Touch or Concern

Touch or Concern (maybe)

Benefits in gross??

No benefits in gross

No affirmative burdens

Vertical Privity

Vertical Privity

Strict (burden)

None (burden)

Relaxed (benefit)

Relaxed (benefit)

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The lists started out pretty straightforward, but got more and more complicated. The lists finally turned into charts as I tried to fight through the questions whether appurtenant and touch and concern meant the same thing, whether benefits in gross were allowed for real covenants and easements, but not for equitable servitudes, whether adverse possessors were bound on equitable servitudes, but not on real covenants, whether the statute of frauds really did not apply to equitable servitudes and notice really wasn't required for real covenants. Not only did the commentators and jurisdictions go all over the place, but nothing explained why these things mattered.

I was particularly puzzled by the horizontal privity and touch and concern requirements. Why covenants between neighbors could only be enforced by injunction, but covenants imposed by a grantor on a grantee could be enforced by a judgment for damages, made no sense.(fn10) Although I was initially attracted to the touch and concern doctrine by its euphony and an intuitive affinity for the idea that benefits and burdens that did not touch or concern the land should not run with it, the cases really puzzled me.

For example, in Neponsit Property Owners' Association v. Emigrant Industrial Savings Bank,(fn11) the highest court in New York struggled mightily to find that a homeowners association could enforce a covenant to pay assessments for upkeep of the privately owned roads, parks, beaches, and sewers serving the development. Why on earth shouldn't such covenants bind successors? Was there some reason developers should not be able to set up communities with privately owned and supported infrastructure? And if they were allowable, why shouldn't the property owners association be the logical entity to collect the assessments and manage the common facilities? The court's discussion of whether the covenants touched and concerned the land did not seem to have anything to do with reality. Another baffling point about the case was why the assessment covenants could not be enforced at law. For relatively small amounts of money, that would surely be as sensible as foreclosing a lien.

I could not make heads or tails out of the material on horizontal privity or touch and concern, or the variations in when interests in gross could be created. Most of the books and articles I turned to didn't help. Privity and touch and concern were incantations solemnly invoked and magically applied by courts, often with inconsistent and unpredictable results. Scholars engaged in mystical contemplation of the sacred terms, but their reading of the deep meanings didn't explain why anyone should care whether an obligation touched or

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concerned or whether the original parties were just neighbors, rather than buyers and sellers of land. Even the explanations of what it means to touch and concern were circular. Something touches and concerns if it alters the legal relations of a landowner...