Restatement (Third) of Property: Servitudes
§ 3.1 Creation of Servitudes: General Rule
Summary
Section 3.1 provides that a servitude may be created by (a) a contract or conveyance intended to create a servitude, (b) an act of a governmental body, or (c) implication, necessity, or estoppel. The section establishes a permissive default: servitudes are freely creatable unless they violate public policy or a constitutional or statutory provision.
The section reflects the Restatement’s commitment to freedom of contract in property transactions. Parties may create servitudes for virtually any purpose related to land use, provided the servitude does not violate the constraints identified in § 3.1. This flexibility allows property owners to customize their land use arrangements to meet their specific needs.
The creation methods encompass both express and implied servitudes. Express creation requires a writing that satisfies the Statute of Frauds (for interests in land), while implied creation can arise from prior use, necessity, or the reasonable expectations of the parties. Estoppel-based servitudes arise when one party reasonably relies on a representation regarding land use.
Key Elements
- 1Created by contract, conveyance, governmental act, or implication
- 2Freely creatable unless violating public policy
- 3Express creation generally requires a writing (Statute of Frauds)
- 4Implied creation by prior use, necessity, or estoppel
- 5Must not violate constitutional or statutory provisions
Practical Application
Section 3.1 governs the validity of newly created servitudes. Courts cite it when evaluating whether a homeowners association covenant is enforceable, whether an implied easement exists based on prior use, or whether an easement by necessity should be recognized for a landlocked parcel. The public policy limitation is particularly relevant for discriminatory covenants, which are unenforceable after Shelley v. Kraemer.
Exam Relevance
Creation questions are common on property exams. The typical fact pattern asks whether a servitude was validly created. Key issues: Was the Statute of Frauds satisfied? If not, does an exception apply (implication, necessity, estoppel)? Does the servitude violate public policy? Does it unreasonably restrain alienation? Always analyze both express and implied creation methods.