Daily Development for
Friday, September 20, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

EASEMENTS; TERMINATION; "CHANGED CIRCUMSTANCES:" Proposed Servitudes Restatement would make easements terminable due to "changed circumstances."

Restatement of the Law, Property (Servitudes) Preliminary Draft No. 13 (9/12/96).

For a number of years now, Professor Susan French of the UCLA Law School has acted as Reporter for a proposed Restatement of Servitudes. From the beginning, Professor French elected to establish a theme of "unification" of the traditional concepts of easement, license, legal covenant running with the land and equitable servitude through one concept - called generically "servitudes." She and a few other scholars had written law review articles contending that for the most part courts were applying the same tests in evaluating these different kinds of interests, but using different names. See, e.g. Susan F. French, Toward a Modern Law of Servitudes: Reweaving Ancient Strands, 55 So. Calif. L. Rev. 1317 (1982); Uriel Reichman, Toward a Unified Concept of Servitudes, 55 So. Cal. L. Rev. 1177 (1982).

In prior DIRT postings and in conversations with Professor French, the editor has expressed fears that the unification concept, which by definition views easements and covenants as the same breed of interest, would render easement vulnerable to the well established judicial view that covenants and equitable servitudes end when, in the mind of the court, "changed circumstances" warrant the conclusion that the easement should no longer be enforced. In this and in other ways, the editor fears that the traditional high degree of protection afforded to the easement as a property interest will be eroded into nothing more or less than a contractual promise.

Professor French has maintained stoutly that her view of the unification concept is that covenants and servitudes will be rendered more enforceable, and that easements will not suffer.

Now, in a proposed draft to be considered by the American Law Institute Advisers and Members Consultative Group, Professor French unveils her proposed Restatement Provisions dealing with "Modification and Termination of Servitudes" (Chapter 7) and specifically applies the "changed circumstances" doctrine to easements.

Here is the specific language:

Section 7.12 Modification and Termination of Servitudes Due to Changed Conditions

"When changes have taken place since the creation of a servitude that make it practically impossible to obtain the benefits contemplated by the creating parties or to accomplish the purposes for which a servitude was created, a court may modify the servitude to permit the originally contemplated benefits to be obtained or purpose accomplished. If modification is not practicable, or would not serve the public interest within the meaning of Section 7.13, the court may terminate the servitude.

If the purpose of the servitude can still be accomplished, but because of changed conditions the servient estate is no longer suitable uses [sic] permitted by the servitude. The court may modify the servitude to permit other uses under conditions designed to preserve the benefits of the original servitude to the dominant estate."

The Reporter's notes categorically state that this section applies the changed circumstances doctrine to easements.

"The rule stated in this section departs from traditional doctrine in applying the changed conditions doctrine to easements, recognizing the fact that courts have in fact terminated easement that have become obsolete either by a liberal application of the abandonment principle, or by finding that the purpose of the easement has become impossible to accomplish, or that the easement no longer serves its intended purpose. "

Section 7.13 referered to in Section 7.12, deals primarily with affirmative covenants, and is not particularly relevant to the easement context.

It should also be noted that in Chapter 8, Professor French also applies the concept of waiver to support non-enforcement of easements.

Comment 1: The language of the Restatement above may at first seem inoffensive, but we must keep in mind that there is already a vast literature of changed circumstances cases involving covenants and equitable servitudes. The net result of "unification," unless special treatment is given to enforcement issues regarding easements, is that all of that literature will not be applied to easements. The Restatement is only a step in the future judicial analysis of easements. Its failure to draw clear lines of demarcation will destroy the current reliability of the easement as a meaningful property concept and force parties to use more cumbersome and expensive means to insure rights that now can be obtained through easements.

Comment 2: Much of the justification for unification has been based upon allusion to the "open space easement" or the "conservation easement." In the view of the editor, these interests should not in the first instance have been viewed as easements. They always have been virtually identical to real covenants or equitable servitudes, but accidents of history have lumped them to the easement side of the equation. Absent these types of easements, it is easy to differentiate between interests that grant physical rights of use to the holder (easements) and interests that restrict or require conduct by the burdened party on the burdened land (covenants). There is no confusion in the real estate community concerning the differences between these concepts, and it would be easy to treat them separately.

Comment 3: More to the point, easements - physical rights of use - particularly when appurtenant to benefitted property, have always been valued by the real estate community as a species of property right. It is true that clear physical evidence of abandonment would terminate them, while fee ownership interests cannot be abandoned, but this distinction came about because of a public policy against having property with no "owner," not because of any perceived characteristic of the easement as less of a "property" interest.

Comment 4: Perhaps because many of Professor French's advisers are primarily common interest ownership types, the Restatement process has been quite thorough in treating common interest communities separately, and the editor assumes that the needs of this area of real estate practice are met through the Restatement language. But the "nuts and bolts" DIRT lawyers (to mix a metaphor) will be faced with the loss of certainty in with regard to a vitally useful and flexible instrument. Courts need little excuse now to attempt to "do justice" as they perceive it, and to ignore bought and paid for property rights in the process. But so far there has been a legal tradition that preserves easements from the worst judicial excesses. The Restatement approach will contribute to the the demise of that tradition.

Comment 5: The editor's concern is not so much with the "changed circumstances" provision as with the entire approach of ignoring the existing recognition in the practice community that easements have greater enforceability than other types of "servitudes." In the editor's view, this is appropriate. They participate much more directly in the tradition of ownership of property as a "bundle of rights" and are distinct from contractual arrangements that might require performance of a promise by an individual or his or her assignee.

If you have concerns about these matters, now, AND I MEAN NOW, is the time to notify the advisers to the Restatement Drafting process. They are as follows (note the scarcity of non-community association lawyers, and of practitioners in general):

Professor Curt Berger - Columbia
Professor Fred Bosselman - Chicago Kent
Bill Breetz - Connecticut
Don Buck- Connecticut
Justice John Cornyn - Texas Supreme Court
Judge David Craig - Judge of Commenwealth Court of Penna., Pittsburgh
Professor Jesse Dukemenier - UCLA
Professor Robert Ellickson - Yale
Marvin Garfinkel - Philadelphia
Professor Dorothy Glancy - University of Santa Clara
John D. Hastie - Oklahoma City
Thomas W. Houghton - Houston Texas
Wayne Hyatt - Atlanta
Professor Thomas Jones - Alabama
Proefssor Gerald Korngold - Case Western
Fred Lane - Boston
Proessor Stewart Sterk - Yeshiva
Professor Michael Sturley - Texas
Lyman Tondel - New York
Professor Carol Rose - Yale
Judge Herbert P. Wilkens - Supreme Judicial Court of Massachusetts

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Laprica Mims at the ABA. (312) 988 6233 or LaPricaMims@abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.