Property II

Promissory Servitude

Promissory servitudes are enforceable promises between a land owner and another.

They are contracts, while easements are property rights.

They are usually negative covenants, but some are affirmative covenants.

Depending on the remedy sought for a breach of the promise, a promissory servitude is either called a real covenant or an equitable servitude:

  1. Real Covenant

    A real covenant is a promissory servitude that is enforceable by monetary damages.

  2. Equitable Servitude

    An equitable servitude is a promissory servitude that is enforceable by an injunction to comply with it.

Common Interest Community

A common interest community is an condominium, cooperative, or a subdivision with a homeowners' association.

The CIC is usually administered by an owners' association, responsible for regulating the community's CCRs and often maintaining common assets.

Covenants, Conditions, and Restrictions

CCRs create reciprocal restrictions and obligations burdening each lot for the benefit of every other lot.

CCRs are unreasonable if they are wholly arbitrary, violate fundamental public policy, or impose burdens on the use of the land that substantially outweigh the restriction's benefits to the development's residents.

If a restriction is ambiguous, it will be interpreted in the least restrictive way.

If a business acts in good faith with a reasonable investigation, courts will defer to them in accordance with the business judgment rule. If the business or CIC is acting unreasonably, the court will use their own reasonableness in the substituted judgment rule.


Servitudes can terminate through:

  • Written releases
  • Merger of the benefitted and burdened parcels
  • Prescription

    Prescriptive easements have the same requirements as adverse possession, minus the requirement of exclusivity and instead of "possession," it is just "use."

    Adverse Possession

    The adverse possession doctrine shifts title of land from the true owner to an adverse possessor after the statutory period expires.

    For possession to ripen into title under adverse possession, most authorities hold that it must be:

    1. Actual possession
    2. Exclusive possession
    3. Continuous possession
    4. Hostile possession
    5. Open and notorious possession

    all for the full duration of the applicable statute of limitations.

  • Abandonment

    Mere nonuse of an easement is not enough to constitute abandonment.

    Abandonment of a restrictive servitude occurs when "violations are so great as to lead the mind of the average [person] to reasonably conclude that the restriction in question has been abandoned."

    • In applying this test, courts consider the "'number, nature, and severity of the then existing violation[s], any prior acts of enforcement of the restriction, and whether it is still possible to realize to a substantial degree the benefits intended through the covenant.'"
    • Fink.
  • Public policy
    • Wholly arbitrary, violates policy, or far outweighs any benefit. Nahrstedt.
  • Changed Circumstances

    Changed circumstances terminates a restrictive servitude when it no longer benefits anyone, yet still imposes a burden.


To determine if a servitude is valid:

  1. Check for ambiguity
  2. Check for reasonableness
  3. Check for abandonment
  4. Check for estoppel