One of my favorite souvenirs from studying and working in Russia is a many-layered matryoshka, or “Russian Doll.” The unpretentious red, yellow, and blue painted wooden doll opens to reveal a smaller, nearly identical doll, which in turn opens to reveal another and another. This particular matryoshka has eleven dolls nested within one another – the smallest barely larger than a grain of rice.
How delightful it was to read Elizabeth Elia’s article, Servitudes Done “Proper”ly: Propriety, Not Contract Law, which frames community servitudes as one of the many nested governing layers within our legal system. Elia’s “Russian Doll” metaphor is compelling, and her broader point – that a governance (“propriety”) frame is the appropriate one for property law – provides gratifying and unexpected analytical clarity to the law of servitudes.
Courts and scholars struggle to make sense of today’s new uses of servitudes that diverge both in form and function from traditional servitudes. For example, the continuing relevance of certain common law requirements, including horizontal privity, has been called into question by the controversial Restatement of Property (Third): Servitudes.
Although many courts still claim that covenants will only run with the land if they “touch and concern” it, the concept of touch and concern is so elastic as to seem based on the eye of the beholder. Common interest communities (CICs) are today created through recorded declarations that conveniently skirt the common law mandate of separate ownership for burdened and benefitted parcels as well as, perhaps, its prohibition of covenants in gross.
In spite of their uneasy fit within traditional servitude rules, CIC covenants – along with conservation easements, affordability covenants, and other quasi-zoning types of modern servitudes – are almost universally enforced by courts.
Enforcement has involved awkwardly stretching (or simply ignoring) traditional servitude law, although modernly, enforcement is more easily facilitated by a plethora of enabling statutes – for CICs and conservation easements in particular. Where specific enabling legislation is lacking, courts simply analyze these restrictions under the auspices of government authority (for example, affordability covenants) or contract law (for example, agreements between developers and local zoning authorities). But still, all such constructs are, at bottom, servitudes on land.
Without a unifying analytical framework, the apparent haphazard judicial treatment of such restrictions has made modern servitude law frustrating to navigate.
For decades, scholars have tried to make sense of this confusion. Richard Epstein, for example, argues that freedom of contract principles, rather than ancient servitude law, should guide legal analysis of easements and covenants today.1 On the other hand, Carol Rose points out that different justifications for property law may drive different judicial approaches to servitudes.2 Rose distinguishes a preference satisfaction justification (grounded in liberal economic theory) from the more ancient justification for property, grounded in the need to promote order and well-being for the people (a concept she calls propriety). Elia synthesizes servitude law using the lens of propriety but argues that governance in liberal democracies incorporate preference satisfaction as a tool for voluntary compliance with the law.
According to Elia, property is properly viewed as nested systems of governance – police power of the state (sometimes devolved to localities) and police power of the individual (sometimes alienated to a manager). The propriety frame casts private property as existing in order to allocate governing power.
Elia explains that the Blackstonian “dominion” of private property is all about governance and governors – usually existing in nested frameworks of overlapping authority and responsibility. “Traditional servitudes” among two parties/parcels impair governance and are disfavored by traditional common law; but “community servitudes” facilitate governance and are therefore favored by courts and legislatures. Such “community servitudes” coordinate uses of land for the mutual benefit of the people, land, and things in the community. Because community servitudes function as neighborhood governance, they are more properly constrained by due process concerns rather than by traditional servitude formation formalities.
Elia’s Servitudes Done “Proper”ly article adds much value to property scholarship. Here are my five favorite things about the article:
- Elia’s propriety frame pushes back on the purely contractual approach to property law – an approach which is problematic because (a) property is distinct from contracts in terms of its scope, application, and remedies, and (b) treating servitudes as contracts risks having consumer contract law’s voluntariness problem spread to restrictions on land.
- Elia’s analytical frame not only brings a desperately needed clarity to servitude law but may also provide a comprehensible approach to other muddied areas of modern property jurisprudence – like regulatory takings law.
- Elia shatters the public-private binary that hobbles the law of land use and ignores the quasi-public nature of private land use restrictions, paving the way for productive consideration of checks on private governance (for example, a homeowners’ bill of rights for CICs or intergenerational justice constraints for conservation easements).
- Elia’s recognition that governance of land and people is a multi-layered “Russian Doll” enriches the federalism debate animating many areas of the law today and highlights that not only is the “who decides?” question paramount, but also that it may be answered in a non-exclusive and lawfully constrained way.
- The property-as-police power lens that incorporates a preference satisfaction justification reanimates questions of property responsibilities that arise from the trust-like role of a governing authority, providing a more solid foundation upon which principles of progressive property can build.
Viewed through Elia’s propriety lens, the law of servitudes becomes more cohesive, comprehensible, and consistent; the relationship between property and stewardship becomes more apparent; and the justification for governance limits – to ensure both personal freedom and public welfare – is more compelling. Nesting individual preferences within the concept of the community and the state, all painted with the patina of property rights and obligations, crafts an elegant American solution to the “Russian Doll” governance complexity our legal system is grappling with today.
- Richard Epstein, Notice and Freedom of Contract in the Law of Servitudes, 55. S. Cal. L. Rev. 1353 (1981).
- Carol M. Rose, Property as Wealth, Property as Propriety, Compensatory Justice: Nomos XXXIII 223 (John W. Chapman ed., 1991).
