Also known as: property servitudes · servitude
Written by attorneys — see sources below.
A legal device that creates a right or an obligation that runs with land or an interest in land.
Pavel Petrov inherited land subject to a recorded property servitude that purported to limit access to nearby polling sites for descendants of former slaves. When election officials enforced the restriction, Petrov sued. The court invalidated the servitude because it abridged voting rights on account of previous condition of servitude.
Pablo Perez sold a parcel to Premier Manufacturing while retaining an adjacent lot. The deed created a permanent right for Perez to use a portion of the sold parcel for customer parking. After Premier Manufacturing conveyed the parcel to a successor, the successor denied access. The court enforced the right because the servitude ran automatically with the land.
Perry Pratt sold an outparcel to Phoenix Technologies under a deed containing a covenant prohibiting any structure that would block views from the retained parcel. Phoenix Technologies later conveyed the outparcel to a buyer who began construction. Pratt sued to enforce the restriction. The court treated the covenant as a servitude because the burden ran with the land.
Pierce Patterson owned land subject to a municipal zoning ordinance limiting building height. When Patterson sought to build taller, the city cited the ordinance. The court ruled that the height limit was a public land-use regulation rather than a property servitude created by private parties.
Parker Phillips granted a neighbor an easement for access across his land to reach a public road. Years later Phillips sold his land to a buyer who continued to honor the access right. The buyer later challenged the easement as personal to the original grantee. The court held the benefit was appurtenant because it served the dominant parcel more usefully than the original beneficiary after transfer.
Phoenix Technologies developed a private marina by dredging a channel to the ocean under a federal permit that reserved public access rights. After completion the United States asserted a navigational servitude requiring public entry. The court determined that the asserted public right was not a private property servitude but a distinct public navigational burden.
In the early 1960s, Kaiser Aetna's predecessor leased a 6,000-acre area including Kuapa Pond on the island of Oahu from the Bishop Estate for subdivision development known as Hawaii Kai. Kuapa Pond was a shallow lagoon covering 523 acres that extended approximately two miles inland from Maunalua Bay, was separated from the Pacific Ocean by a barrier beach, and had been used historically as a private fishpond under Hawaiian law following the 1848 Great Mahele land division. Kaiser Aetna dredged the pond to an average channel depth of six feet, constructed an eight-foot-deep channel through the barrier beach to connect it to the bay and ocean, erected retaining walls, built bridges, and eliminated the original sluice gates to create the Hawaii Kai Marina for pleasure boats. The Army Corps of Engineers issued a permit for the dredging and filling operations that expressly provided the marina would be a private facility not open to the general public. At the time of trial, a marina-style community of approximately 22,000 persons surrounded the pond, including 1,500 waterfront lot lessees who paid fees for maintenance and security, and Kaiser Aetna controlled access while generally prohibiting commercial use except for limited promotional vessels. In 1972 a dispute arose when the Corps asserted regulatory authority under the Rivers and Harbors Appropriation Act and claimed the pond had become navigable waters of the United States open to the public. The United States filed suit in the United States District Court for the District of Hawaii seeking a declaration of public access rights and an injunction requiring Kaiser Aetna to allow such access. The District Court found that Kuapa Pond had not been navigable prior to the improvements, held that the pond was subject to Corps regulation but that the Government lacked authority to open it to the public without compensation, and denied the requested injunction. The Court of Appeals for the Ninth Circuit reversed, holding that the marina was subject to the federal navigational servitude and that no compensation was required. The Supreme Court granted certiorari to consider whether the Government's assertion of a public right of access amounted to a taking of private property.
View caseA covenant becomes a servitude when either its benefit or its burden runs with land. The Restatement treats the covenant as running when it passes automatically to successive owners or occupiers of the affected parcel.
A benefit is appurtenant when it serves a purpose more useful to a successor owner of the original beneficiary's land than to the original beneficiary after transfer. It is in gross when created in a person who held no benefited property or when it serves the original beneficiary more than any successor.
Public land-use regulations such as zoning are not servitudes within the meaning of the Restatement. Servitudes are private devices that create rights or obligations running with land.
The attempt does not create a servitude but may create rights enforceable against the owners who joined and may support a later claim of servitude by estoppel if the non-signing owner remains silent during negotiations.
…must forever maintain its property in its present state. The property has been thus subjected to a nonconsensual servitude not borne by any neighboring or similar properties. B Appellees have thus destroyed—in a literal sense, “taken”— substantial property rights of Penn Central. While the term…