Rose, Carol M. --- "Servitudes" [2011] ELECD 158; in Ayotte, Kenneth; Smith, E. Henry (eds), "Research Handbook on the Economics of Property Law" (Edward Elgar Publishing, 2011)

Book Title: Research Handbook on the Economics of Property Law

Editor(s): Ayotte, Kenneth; Smith, E. Henry

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847209795

Section: Chapter 14

Section Title: Servitudes

Author(s): Rose, Carol M.

Number of pages: 30

Extract:

14 Servitudes
Carol M. Rose


In popular democracies, any legal doctrine with the name `servitude' has a strike against
it. According to the law of servitudes, generally speaking, one property is subordinate to
another for some specified set of purposes, presumably in a kind of `service' to the other.
As if these intimations of hierararchy were not enough, in the United States, the servi-
tudes that most readily come to mind for most people are racially restrictive covenants,
now unenforceable for decades but still remembered as a part of a race-ridden history.
Servitudes raise misgivings for another reason as well: their reputation for head-breaking
and deal-breaking complexity.
In spite of these caveats, servitudes are tremendously useful. They lie at the heart of
sophisticated modern land developments as varied as shopping malls, common interest
residential developments, and environmentally oriented land conservation arrange-
ments. They now appear to be poised for an alternative life in intellectual property,
where various devices have now come to the fore to enable promises to `run' with
software or information.1
None of these developments, of course, could have occurred without a considerable
number of alterations in traditional servitude law, or without the development of a
supporting legal institutional infrastructure. Perhaps the most dramatic signal of these
changes is the arrival in 2000 of the American Law Institute's new `Restatement' of
servitude law, in which this non-radical assemblage of notable lawyers and academics
endorsed a dramatic simplification and paring-back of the ...