Written by attorneys · grounded in primary & secondary sources — see below
A legal device created by private agreement that imposes a right or obligation running with land or an interest in land. The device binds successive owners or occupiers of the affected parcels automatically upon transfer. Public land-use regulations and doctrines such as zoning or riparian rights fall outside this category.
Sources & Authorities
How it applies
Common Examples
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Recorded Access Right Binds Successor
Apex Industrial Park LLC owns an industrial park uphill from a rail spur operated by Meridian Rail Corp. Years ago Apex's predecessor signed and recorded a written agreement granting trucks serving the park the right to use a paved road across an adjacent factory lot. The factory lot was later sold to Nexus Manufacturing Corp which told Apex it would block the road. Apex sued for a declaration of its access rights. The court held that the recorded access right runs with the land to Nexus.
Covenant Runs With Land To New Owner
Sun Market LLC developed a lifestyle shopping center and sold an anchor pad to Royal Market under a deed stating that no other parcel within the center could be used for general merchandise discount retailing. Sun Market recorded servitudes on the core mall parcel creating landscaped pedestrian corridors and shared customer parking. Sun Market conveyed an outpad parcel to Dusk Outlet by deed that referenced participation in the coordinated retail project. Dusk Outlet asserted implied rights to the parking and corridors. The court held that the benefit of the servitude runs with the land to Dusk Outlet.
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Cases
Statutes
Uniform Acts
Model Codes
Restatements
Dictionaries
Affirmative Covenant Binds Subsequent Purchaser
In State A Global Legal a law firm partnership purchased an office condo unit in a mixed-use building. The building declaration recorded years earlier established a shared law library and required each unit owner to contribute proportionally to the library's ongoing maintenance costs. Global Legal refused to pay claiming the obligation applied only to the original signatory firms. Prairie Rights and Republic Firm sued Global Legal seeking enforcement of the contribution obligation. The court held that the covenant is a servitude because the burden runs with the land.
Private Agreement Creates Servitude Not Regulation
The Environmental Restoration Service entered a multistate consent settlement under which Gulf Holdings granted the agency perpetual conservation rights over wetlands on Gulf's privately owned parcel in Louisiana. Gulf later sold the parcel to Bayou Development LLC which sued arguing that under Louisiana property law the recorded documents did not create a real servitude. The court held that the conservation rights constitute a private servitude rather than a public land-use regulation.
Benefit Appurtenant To Property Interest
ParkDev Corp developed a large tract into a construction trade park subject to multiple recorded servitudes in the master deed. A separate servitude in the master plan designated one commercial lot as a shared stormwater retention basin benefiting multiple parcels. After acquiring the lot WarehouseDev LLC partially filled the basin causing flooding damage to Neighboring Owners. The court held that the benefit of the servitude is appurtenant to the neighboring parcels.
Private Servitude Distinguished From Constitutional Servitude
Harold conveyed a forested tract to his niece Sara and the heirs of her body on condition that it always be maintained as a wildlife preserve otherwise it shall revert to his estate. Sara took possession and by will purported to leave the tract to GreenTimber Inc. After Sara died GreenTimber and the executor of Harold's estate asserted competing claims. The court held that the condition created a private servitude running with the land rather than a constitutional condition of servitude.
Common questions
Frequently Asked
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What distinguishes a private servitude from a public land-use regulation?+
A private servitude arises from agreement between private parties and creates rights or obligations that run with land. Public land-use regulations such as zoning do not qualify as servitudes under the Restatement definition.
Supporting sources
When does a covenant qualify as a servitude?+
A covenant qualifies as a servitude if either the benefit or the burden runs with land. The running character is determined by whether the right or obligation passes automatically to successive owners or occupiers.
Supporting sources
How does a servitude benefit become appurtenant rather than in gross?+
The benefit is appurtenant if it serves a purpose more useful to a successor to a property interest held by the original beneficiary than it would be to the original beneficiary after transfer. In cases of doubt the benefit is construed to be appurtenant.
Supporting sources
Does a servitude require privity between the original parties?+
No privity relationship between the parties is necessary to create a servitude. A recorded agreement granting permanent use rights can create a servitude even when the beneficiary holds no ownership or lease interest in any parcel.
Supporting sources
438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)Property
…must forever maintain its property in its present state.[^maj-5] The property has been thus subjected to a nonconsensual servitude not borne by any neighboring or similar properties.[^maj-6] B Appellees have thus destroyed—in a literal sense, “taken”— substantial property rights of Penn Central. While the term…