2.  Deed ◦ Loosely translated as a “gift” ◦ Necessary as a part of property transfer  Deed Restrictions ◦ Terms and conditions attached to the transfer of property ◦ Restricts use, future sale, potential improvements

3.  Deed Restrictions are Considered a Contract ◦ Party imposing restrictions must own property ◦ Restrictions must be committed to paper and recorded ◦ Recordation attaches restrictions to property ◦ Contract is between individuals, however composed

4.  Often attached to subdivisions  Meant to enhance / preserve community & amenities ◦ Makes land more valuable ◦ Reduces risk to future owners  Potential purchaser must agree to restrictions  Through proper title search, restrictions should never come as a surprise.

5.  Come in two forms  Personal Covenant ◦ Binding only between present grantor and grantee ◦ Have nothing to do with use or enjoyment of property  Real Covenant ◦ “Runs with the Land” or “Touch and Concern” the property ◦ Covenant and property are inseparable ◦ Affects the use and enjoyment of property  Termination ◦ Restrictions terminate only upon agreement by all parties involved

6.  Covenants are enforceable only under certain circumstances ◦ They are reasonable in nature ◦ They are not immoral or illegal ◦ They are not contrary to public policy

7.  Examples of unenforceable covenants ◦ Forbidding future sale based on race or religion ◦ Forbidding future sale based on age or family status ◦ Government requiring restrictions in order to grant approval of subdivision (in Houston – no zoning)  Ambiguity? ◦ All doubts resolved in favor of free use of land (similar to public regulation)

8.  A readily identifiable stick in a bundle of property rights  Consistent with the segment theory of property, easements assign rights to parties for limited use or possession of land

9.  Private  Public  By Dedication

10.  In Gross ◦ An easement owned by an individual or corporation ◦ A personal right that cannot be assigned or otherwise transferred ◦ Terminates on death of individual or dissolution of corporation

11.  Appurtenant Easements ◦ Attaches to property rather than as a right to an individual ◦ Requires two “estates” (dominant and servient)  Dominant tenant has the right to use easement  Servient tenant is burdened by the easement ◦ May be affirmative or negative  Affirmative gives right to dominant tenant to use and access easement  Negative restricts servient tenant’s rights in favor of the dominant tenant

12. A B

13.  Appurtenant Easements are transferable ◦ Transfer of dominant tenement includes easement across servient tenement ◦ Transfer of servient tenement includes the burden of the easement ◦ What if dominant tenant purchases servient tenant’s land?  Easement terminates (cannot own property across one’s own land)

14.  Creation by Implication ◦ By reservation ◦ By grant ◦ By way of necessity

15.  Creation by Reservation or Grant ◦ Requires prior existence and use of the easement ◦ Prior use must have been:  Apparent  Permanent  Continuous  Necessary for enjoyment of the property granted

16.  By way of Necessity ◦ No prior existence or use is required ◦ Requirements:  Must be unity in ownership of dominant and servient estates at time of conveyance or some prior time  Easement must be necessary to access and egress property  Necessity for easement existed at time of conveyance

17. A B

18.  Easements by Estoppel ◦ An easement granted “in good faith” (i.e., not on paper) ◦ The grantor of an easement can be “estopped” from denying access to grantee if the easement was granted in good faith ◦ Usually as a result of property purchase

19.  Easement by Prescription ◦ Works in a way similar to adverse possession ◦ While adverse possession ripens into title of land, prescriptive rights mature into easement ◦ Five requirements  Use must begin and continue without the actual or implied permission of landowner (must be adverse to owner of land)  Use must be open and notorious  Use must be exclusive  Use must be in same place within definite lines  Use must be continuous and interrupted

20.  Termination of Private Easements ◦ Transfer of servient estate without notice to buyer ◦ Operation of Law (foreclosure, etc.) ◦ Abandonment ◦ Failure of Condition ◦ Merger ◦ Expiration of Designated Term ◦ Adverse Possession ◦ Expiration of Purposes ◦ Misuse ◦ Change of Condition ◦ Grant of Release

21.  Right and enjoyment of easement is granted to public or community  Can be created in three manners ◦ By dedication ◦ By prescription ◦ By condemnation

22.  Easement by Dedication ◦ Transfer of interest in land in easement, but not in title to land ◦ Voluntary transfer ◦ Statutory dedication  Must be carried out in compliance with applicable statutes

23.  Easement by Dedication ◦ Common Law Dedication ◦ Requires four elements  Person is competent to dedicate  Public is served by dedication  Dedication is actually offered to public  Offer of dedication must be accepted

24.  Dedications may be expressed or implied ◦ Express dedication  Declared written or orally ◦ Implied Dedication  Declared by affirmative actions by owner  Declared by inaction or acquiescence on owner’s part

25.  Easements by Prescription ◦ Similar to private creation (I.e., similar to adverse possession) ◦ Two important caveats  Public prescriptive easement must not be used strictly for pleasure or recreation  Use must be exclusive and not shared by the owner

26.  Easement by Condemnation ◦ Public agency forcing private owner to grant easement  Must be for public purpose  Cannot condemn more land than necessary  Owner must be compensated  Owner must be afforded due process

27.  Termination of Public Easements ◦ Abandonment  passive ◦ Vacating a dedicated plat  active