Available at http://www.ProfessorBeyer.com HLSA Property Review Easements, Profits, Licenses Real Covenants & Equitable Servitudes April 23, 2009

Easements -- Introduction

Easements -- Generally Limited use or enjoyment of another’s land

Easements -- Generally Limited use or enjoyment of another’s land Protected against interference by third parties

Easements -- Generally Limited use or enjoyment of another’s land Protected against interference by third parties Not revocable by landowner

Easements -- Generally Limited use or enjoyment of another’s land Protected against interference by third parties Not revocable by landowner Not normal incident

Easements -- Generally Limited use or enjoyment of another’s land Protected against interference by third parties Not revocable by landowner Not normal incident May be created by conveyance

Easements – Servient vs. Dominant Servient Tenement Land burdened by the easement Land which “suffers” because of the easement Dominant Tenement Land benefited by the easement Land which is made “more valuable” because of the easement

Easements – Affirmative vs. Negative Easement holder may do something on the servient tenement. Negative Easement holder may prevent something from being done on the servient tenement.

Easements – Appurtenant vs. in Gross Dominant tenant owns land benefited by the easement. Easement benefits land. In Gross No benefited land. Easement benefits a person, the dominant tenant.

Profits à Prendre Dominant tenant also has right to remove a portion of the servient land or its products. Examples: soil, timber, crops, minerals Modern Law: treated under the same rules as easements.

Licenses Use of land that is revocable by the servient tenant. Often deemed too weak to be a true interest in land.

Express Easements Creation Methods Grant

Express Easements Creation Methods Grant Reservation to Grantor

Express Easements Creation Methods Grant Reservation to Grantor Exception to Grantor

Express Easements Creation Methods Grant Reservation to Grantor Exception to Grantor Reservation to Third Party

Implied Easements -- Introduction Implied from circumstances (not in the deed)

Implied Easements -- Introduction Implied from circumstances (not in the deed) Severance of commonly-owned parcels required: Deed conveys some, but not all, of grantor’s land, or Deed conveys grantor’s land to different grantees

Types of Implied Easements By Necessity By Prior Use (also called a quasi-easement)

Implied by Necessity Owner of Rectangle conveys Oval to Grantee

Implied by Prior Use Use must exist prior to severance.

Factors Courts Examine Implied by Prior Use Factors Courts Examine Prior use apparent or discoverable by reasonable inspection

Factors Courts Examine Implied by Prior Use Factors Courts Examine Prior use apparent or discoverable by reasonable inspection Permanent or Continuous

Factors Courts Examine Implied by Prior Use Factors Courts Examine Prior use apparent or discoverable by reasonable inspection Permanent or Continuous Necessary and Beneficial Note difference between implied grant and implied reservation.

Factors Courts Examine Implied by Prior Use Factors Courts Examine Prior use apparent or discoverable by reasonable inspection Permanent or Continuous Necessary and Beneficial Note difference between implied grant and implied reservation. Other Factors

Prescriptive Easements

Elements under Texas Law Open & Notorious

Elements under Texas Law Open & Notorious Adverse to Owner’s Claim of Right

Elements under Texas Law Open & Notorious Adverse to Owner’s Claim of Right Exclusive (minority approach)

Elements under Texas Law Open & Notorious Adverse to Owner’s Claim of Right Exclusive Uninterrupted Use

Elements under Texas Law Open & Notorious Adverse to Owner’s Claim of Right Exclusive Uninterrupted Use Continuous (at least 10 years)

Scope and Transferability of Easements

Express Easements Terms of Easement Deed provisions control

Scope of Express Easements Terms of Easement Easement Silent Rule of Reason – a balancing test: benefit to dominant tenant vs. burden on servient tenant

Scope of Implied Easements Circumstances from a reasonable perspective

Scope of Prescriptive Easements Original adverse use becomes basis for applying the rule of reason.

Use of Easement by Servient Tenant May use and enjoy but May not interfere with dominant tenant’s use.

Use of Easement by Servient Tenant May grant overlapping easements but New easements cannot unreasonably interfere with original easement. [Note that original easement may be made exclusive].

Use of Easement by Servient Tenant Generally, servient tenant may not move the location of the easement.

Use of Easement by Servient Tenant If dominant tenant wants easement maintained, dominant tenant must perform the maintenance. Covenants to repair, however, may be coupled with an easement.

Transfer of Easements Express Provision of Easement Silent Easement Burden Benefit Appurtenant In Gross

Termination Methods Natural Duration Merger Release Abandonment by Dominant Tenant Estoppel Forfeiture Not Mere Non-use Prescription/Adverse Use Sale of Servient Tenement of a Prescriptive or Implied by Prior Use Easement

Real Covenants

Definition Promise which is enforceable not only between the original parties, but also between successors of either party solely because they are now the new owners of the land.

Elements of Real Covenant Enforceable Promises

Elements of Real Covenant Enforceable Promises Intent for Promise to Run with the Land

Elements of Real Covenant Enforceable Promises Intent for Promise to Run with the Land Promise Must “Touch and Concern” the Land

Elements of Real Covenant Enforceable Promises Intent for Promise to Run with the Land Promise Must “Touch and Concern” the Land Privity between original parties Mutual Horizontal No privity of estate needed

Equitable Servitudes -- Generally A covenant enforced as running with the land in a court of equity even though it does not meet all the requirements of a real covenant. Key issue = which requirements may be lacking?

Texas Elements of Equitable Servitudes Successor to burdened land took its interest with notice of the restriction.

Texas Elements of Equitable Servitudes Successor to burdened land took its interest with notice of the restriction. Covenant limits the use of the burdened land.

Texas Elements of Equitable Servitudes Successor to burdened land took its interest with notice of the restriction. Covenant limits the use of the burdened land. Covenant benefits the land of the party seeking to enforce it.

Implied Reciprocal Equitable Servitude Lots in residential subdivision originally owned by common owner/developer.

Implied Reciprocal Equitable Servitude Lots in residential subdivision originally owned by common owner/developer. Owner/Developer imposed restrictions in deeds of most conveyed parcels.

Implied Reciprocal Equitable Servitude Lots in residential subdivision originally owned by common owner/developer. Owner/Developer imposed restrictions in deeds of most conveyed parcels. Developer imposes general plan upon subdivision (uniform restrictions on most deeds, recorded declaration, etc.)

Construction of Covenants Traditional Approach = strict construction (exactly as written) Modern Approach = broad construction (includes similar unstated limits consistent with purpose)

Termination of Covenants Express time stated in covenant Statutory duration Release Merger Estoppel, prescription, laches, etc. Unclean hands Acquiescence Changed Conditions

Good luck on your exams!!