Also known as: benefit in gross burden does not run · covenant burden running with land · servitude in gross
Written by attorneys · grounded in primary & secondary sources — see below
A principle under which a person holds the benefit of a servitude in gross until the benefit is transferred to another.
Luis personally promised Metro Realty to maintain a rooftop billboard structure for advertising use. Two years later Luis sold the building but retained the billboard right and ceased maintenance. Metro sued Luis for breach. Because the benefit was held in gross, Luis's personal burden continued under contract rules rather than ending with the land transfer.
Harold received a personal written right to draw water from a canal on GreenFields Ag land with no tie to any parcel he owned. Years later Harold sold his farm but assigned the water right in writing to Maya. GreenFields refused Maya access. The in-gross benefit stayed with Harold until the valid transfer, allowing Maya to enforce it.
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The Restatement rejects the traditional rule and permits the burden to run with the land when enforcement would not create an unreasonable restraint on alienation, though some jurisdictions such as Massachusetts continue to follow the older approach.
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The duration of any person's liability to perform a servitude burden in gross is determined according to the rules governing liability to perform contractual obligations rather than by reference to ownership of the burdened land.
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A person holds the benefit of a servitude in gross until the benefit is transferred to another, terminated by its own terms, or extinguished under general servitude doctrines such as abandonment or merger.
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No. Use of such words is not necessary to indicate an intent that benefits be transferable, and their absence does not indicate that the parties intended the benefit to be personal to the original beneficiary.
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