 estate in England was limited to those in a landlord-tenant relationship. In America, a buyer-seller relationship sufficed.
The influential Restatement of Property has taken the view, as do the laws of many states, that the burden of a real covenant is not imposed on successors to the owner of the servient estate if the benefit does not run with the land to be benefited.13 Furthermore, real covenants, like most contract rights, were enforceable only through money damages. This would be an entirely unsatisfactory remedy in the case of conservation easements, which must bind the burdened land, even though the benefit does not pertain to adjoining parcels, and where money damages are an insufficient remedy for violations.
The Common Law of Equitable Servitudes
The privity requirement for real covenants proved to be unduly technical and difficult to comply with. Also, money damages were viewed as less effective that the ability to enjoin violations of a covenant. For these reasons, courts of equity developed yet a third layer of controls, the equitable servitude. In the case of restrictions that were appurtenant, it was easy. If the parties intended that their successors be bound, if the subject matter of the agreement touched and concerned the land, and if the successor to ownership of the servient tenement had reason to know of the restriction, he was bound to it. Again, however, things were not so simple when a servitude in gross was concerned. If the benefit did not run with the land authorities differed as to whether the burden ran with the land so as to bind a succeeding owner.14 Once again, resistance to new types of restrictive arrangements prevailed.
Common Law Reform Doesn’t Address the Conservation Easement Problem
During the past few decades, American courts and legal scholars have concluded that the common law system of three overlapping but subtly different bodies of law for the private coordination of land use makes no sense. The new version of the Restatement of Property now being developed by the American Law Institute has adopted as a guiding principle that the law of servitudes is "an integrated body of doctrine encompassing the rules applicable to profits, easements, and covenants." Generally, all servitudes "are functionally similar, and … for the most part they are, or should be, governed by the same rules."15 When we look at how interests are "governed by the same rules" under this new Restatement, the crucial distinction becomes apparent: "appurtenant … burdens pass automatically,"16 but a "burden in gross is simply a contract obligation."17 Since conservation easements are not intended to benefit land trusts as owners of adjoining property, these developing reforms in common law land use coordination devices do not solve the problem.