Servitudes, Security and Assent: Some Comments on Professors French and Reichman

Abstract

Easements and covenants are second only to the "fee tail" or perhaps to "springing uses" as a symbol of the mindless formalism of traditional property law. Aside from that, when we consider what easements and real covenants do—bind land owners to some previous owners' agreements in which the current owners have had no say—the puzzle is that a free and rational nation permits these legal arrangements at all. Even the name, "servitude," which Professors Reichman and French prefer to use in their excellent articles, has a slight ring of involuntarism. As these two authors tell us, we tolerate these "dead hand" arrangements because they provide a long lasting security for land development and encourage property owners to invest in the long term improvements that are essential to the productive use of real estate. As Jeremy Bentham told us over a century ago, secure expectations of return are a sine qua non of enterprise; if the community wants to encourage my neighbor to invest time and effort in a solar heating panel, it had better let him agree with me that I and my successors will keep my trees from overshadowing his roof.