For years American property law scholars have debated the merits of the Restatement (Third) Property: Servitudes (2000). Some have praised it as a bold attempt to streamline and rationalize an outdated and confusing area of law. Others have criticized it for having too much of a reformist agenda. Most scholars agree, however, that one of the boldest aspects of the Restatement (Third) was its attempt to suppress ancient doctrines like privity of estate and touch and concern, which control the kinds of promises that can be imposed on future land owners. For some scholars, this move revealed a striking “contract-like conception of servitudes,” one that focuses on the intent of the original contracting parties and that limits longterm enforceability through contractual defenses like restraint of trade, unconscionability, and violation of public policy. Thomas Merrill & Henry E. Smith, Why Restate the Bundle?: The Disintegration of the Restatement of Property, 79 Brook. L. Rev. 681, 694 (2014).

A fair number of these scholars also repeat an apparent conventional wisdom about the Restatement (Third); namely, that U.S. courts have “largely ignored” the most innovative features of the text and still apply the old common law doctrines that patrol whether promises respecting use of an estate will run with the land. Merrill & Smith, 79 Brook. L. Rev. at 694. For those who might be interested in exploring whether this conventional wisdom is accurate, Professor Gerald Korngold’s comprehensive, one-volume treatise, Private Land Use Arrangements: Easements, Real Covenants and Equitable Servitudes 387-88, 404-06, 410 (2016) might be a good place to start.

Other parts of the Restatement (Third) have, of course, frequently been cited and relied upon by U.S. courts. Section 4.8(3), for example, which provides for the unilateral relocation of easements by a servient estate owner when the relocated easement provides a functionally equivalent benefit to the easement holder, was adopted by the Colorado Supreme Court and the Supreme Judicial Court of Massachusetts, Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229 (Colo. 2001); M.P.M. Builders L.L.C. v. Dwyer, 809 N.E.2d 1053 (Mass. 2004), among other courts. The partial reception of Section 4.8(3) into U.S. law has recently led the Uniform Law Commission (also known as the National Conference of Commissioners on Uniform State Laws) to start drafting a Uniform Easement Relocation Act, a project for which I serve as Reporter. Somewhat less notably, many U.S. courts also cite and discuss Sections 2.16 and 2.17 of the Restatement (Third) and their detailed comments, all of which provide useful guidance in disputes involving prescriptive easements.

Finally, and perhaps least well known of all, many scholars and law reformers working abroad have examined and used the Restatement (Third). To these scholars the Restatement (Third) presents a coherent, but not radically libertarian, conception of servitudes, one that acknowledges the importance of freedom of contract but also recognizes the dangers of idiosyncratic and eventually obsolete land use promises. As Cathy Sherry (University of New South Wales) put it, the Restatement (Third) reveals the underlying roots of judicial control of servitudes and helps courts and legal scholars see the underlying policy choices presented by demands to recognize new servitudes, particularly those that impose affirmative obligations on successive owners and those that allow for the creation of strong communities of interest. As Sherry notes, the Restatement (Third) also helps clarify the policy choices involved in addressing demands to modify or terminate servitudes. Cathy Sherry, Land of the Free and Home of the Brave?: The Implications of United States Homeowners Association Law for Australian Strata and Community Title, 2014 Australian P. L.J. 17.

Personally, I started to appreciate the international reach of the Restatement (Third) when I began to interact with property law scholars from places like Scotland, England and Wales, Canada, Australia, South Africa, Israel, and the Netherlands, in the mid-to-late 2000s. As I talked with these scholars, read their books and law review articles, and studied law commission reports they authored, I began to realize that the Restatement (Third) has had a lasting international impact. Examples can be found in many places.

Consider the extensive work of the Law Commission of England and Wales. In 2008, the Law Commission published a comprehensive Consultation Paper entitled Easements, Covenants and Profits à Prendre, full of citations to the Restatement (Third). In 2011, the same law commission published its final report to Parliament entitled Making Land Work: Easements, Covenants and Profits à Prendre, complete with a detailed Draft Bill. In this work, the Law Commission repeatedly refers to the Restatement (Third) for both substantive reform suggestions and to frame the basic policy debates facing English property law. Interestingly, the Law Commission borrowed directly from Section 2.15 of the Restatement (Third) in one important area—the law of implied easements. It did so by adopting a simplified test for the creation of such easements focused on whether the claimed easement “is necessary for the reasonable use of the land” at the time of disposition of the land. Making the Land Work, ¶¶ 3.43-3.47, at 35-36.

When the Law Commission turned to the vexing problem of whether to allow covenants that impose positive obligations to run with the land, it relied heavily on the Restatement (Third) to frame the problem, admitting candidly that it “had drawn inspiration from that work.” Although the Law Commission ultimately stuck with the traditional touch and concern test, the Restatement (Third) certainly left its mark on the English debate. Making Land Work, ¶¶ 5.31-5.33, 5.51-5.77, at 103-104, 108-113.

Eleven years earlier, the Scottish Law Commission also engaged deeply with many of the key reform ideas found in the Restatement (Third). In its Report on Real Burdens (2000), which led directly to the new Scottish Parliament’s adoption of the Title Conditions (Scotland) Act 2003, the influence of the Restatement (Third) is clearly apparent. Not only did the Restatement (Third) clarify the different ways that land burdens can be policed (i.e., through ex ante or ex post controls), but it also provided useful terminology that transcends particular forms of land burdens. In the end, although Scotland did not adopt a completely unified system of land burdens as the Restatement (Third) proposed, the impact of the Restatement (Third) can be seen in the policy arguments reviewed in the Report on Real Burdens and in the drive to modernize the traditional system. As Kenneth Reid, the primary author of the Report on Real Burdens, has noted, Scotland finally appreciated that it could encourage innovative land development practices while limiting problematic real burdens through existing creation tests, and meanwhile it could achieve strong ex post judicial control through existing specialized land tribunals that had the power to modify or terminate obsolete land burdens in much the same way that the Restatement (Third) recommends. Ken Reid, Modernising Land Burdens: The New Law in Scotland, in Towards a Unified System of Land Burdens? 63-79 (Sjef van Erp and Bram Akkermans, Eds.) (2006).

With enough time, one could certainly find other instances of law reform reports and academic studies that either learned from or even directly borrowed concepts from the Restatement (Third). So, what characteristics of the Restatement (Third) account for its international influence? I have several intuitions.

First, recall that the Restatement (Third) was preceded by a lengthy, especially high quality and spirited academic debate prior to its publication. This fact, combined with the work’s modest reform agenda, helped make the ultimate product inherently interesting to property law academics in other countries. Moreover, for academic property lawyers serving on official law reform commissions, the Restatement (Third) provided a particularly well packaged source of new ideas, systematically arranged, and amply supported by detailed, authoritative comments and reporter’s notes that set forth the historical development of English and American property law. In addition, the comprehensiveness, the analytical clarity and the very accessibility of the Restatement (Third) made it an irresistible source, especially when compared to the alternatives—dusty law review articles and the quagmire of case law from multiple U.S. jurisdictions that would be difficult for any foreign academic to locate, let alone digest and synthesize. Finally, the code-like qualities of the Restatement (Third) may partially have accounted for its appeal. Not only did the Restatement (Third) actually adopt the Roman law concept of the servitude as its unifying model for the law of easements, covenants, and profits à prendre, but the text itself often achieves a codelike simplicity of style and generality of principle that would naturally appeal to property law academics exposed to actual civilian codifications of property law or to less elegant common law statutory codifications, and to academics who work in jurisdictions like Quebec, Scotland, Israel and South Africa where civil law and common law ideas about property often come into direct contact.

Although it may be impossible to prove the extent to which the Restatement (Third) has been directly transplanted into foreign legal systems by legislatures or courts, I am confident that it has influenced foreign law professors who (one hopes) have influenced their students. Some of those students, no doubt, now serve as judges or legislators themselves. My hunch is that the Restatement (Third) will continue to influence the thinking of these individuals even after The American Law Institute publishes its Restatement (Fourth) of Property.



John A. Lovett

Loyola University New Orleans College of Law

John A. Lovett is the De Van D. Daggett, Jr. Distinguished Professor at Loyola University New Orleans College of Law and Visiting Professor at the University of Edinburgh Law School. He currently serves as the Reporter for the Uniform Law Commission’s Easement Relocation Act Drafting Committee.


Submit a Comment

Your email address will not be published. Required fields are marked *