Academic journal article Harvard Law Review

Touch and Concern, the Restatement (Third) of Property: Servitudes, and a Proposal

Academic journal article Harvard Law Review

Touch and Concern, the Restatement (Third) of Property: Servitudes, and a Proposal

Article excerpt

At common law, real covenants and equitable servitudes (1) do not run with the land unless they touch and concern the land. (2) The touch and concern requirement, however, has long been a source of confusion and the target of criticism. In 1998, the American Law Institute (ALI) responded by eliminating the touch and concern requirement in the Restatement (Third) of Property: Servitudes. (3) In its place, the ALI instituted a largely contractual regime under which a covenant will run with the land unless it is "illegal or unconstitutional or violates public policy." (4) As of this writing, only one line of cases has used the ALI's new test. This Note argues that courts are correct in not embracing the Restatement's new approach not only because it is questionable whether the Restatement accomplished the goals its drafters set for it, but also because of the high transaction costs, lack of flexibility for successors, risk of property fragmentation, and high information costs that stem from the Restatement's overarching goal of keeping the original parties' bargain in place. This Note does not, however, advocate maintaining the touch and concern requirement; instead, it proposes a regime under which parties would renegotiate covenants in good faith at set time intervals.

Part I describes the confusion surrounding the touch and concern requirement. Part II describes the Restatement, maps courts' reactions to its provisions, and analyzes the regime. Part III describes the proposed legislation and compares it to the touch and concern and Restatement regimes. Part IV concludes.


The touch and concern requirement has had a tumultuous history. The requirement has endured decades of scholars' failed attempts at articulating a definitive definition, test, or rationale for the requirement, and it has weathered severe criticism. The touch and concern requirement was first conceived in the English courts in Spencer's Case, (5) and later explained in Congleton v. Pattison (6) as a requirement that the covenant must "directly affect[] the nature, quality, or value of the thing demised, [or] the mode of occupying it." (7) In 1914, Professor Harry Bigelow, in his article The Content of Covenants in Leases, (8) rejected the Congleton test, declaring it "vague" and "question-begging," (9) and articulated the following test: a covenant touches and concerns the land if it "operate[s] either to make more valuable some of the rights, privileges, or powers possessed by the covenantee or to relieve him in whole or in part of some of his duties." (10) Professor Bigelow's test was later tweaked by Dean (later Judge) Charles Clark:

  If the promisor's legal relations in respect to the land in question
  are lessened--his legal interest as owner rendered less valuable by
  the promise--the burden of the covenant touches or concerns that
  land; if the promisee's legal relations in respect to that land are
  increased--his legal interest as owner rendered more valuable by the
  promise--the benefit of the covenant touches and concerns that
  land. (11)

Though the Bigelow-Clark test has been widely criticized as being circular, (12) it remains an oft-quoted test because, despite many attempts, (13) there has been no consensus on an alternative.

Many scholars chose to sidestep the quest for a definitive test for the touch and concern requirement and instead articulated varying rationales for the requirement. (14) Though many of the suggested rationales are not mutually exclusive, if any scholar had hoped to clear up the confusion surrounding the requirement by articulating its definitive rationale, she has not achieved her goal; there is no consensus on a rationale for the touch and concern requirement.

Instead of adding to the confusion, other scholars chose to attack the touch and concern requirement. For example, Professor Susan French's criticism has focused on the confusion itself; she has criticized the requirement as vague, confusing, and complex--qualities which allow judges to invalidate servitudes without explanations and have led judges to error. …

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