Easements and Deed Restrictions

1. Easements and Deed Restrictions

2. Deed Restrictions • 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 • 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. Deed Restrictions • 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. Deed Restrictions • 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. Restrictive Covenants • 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. Restrictive Covenants • 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. Easements • 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. Easements • Private • Public • By Dedication

10. Private Easements • 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. Private Easements • 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. Private Easements A B

13. Private Easements • 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. Private Easements • Creation by Implication • By reservation • By grant • By way of necessity

15. Private Easement • 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. Private Easements • 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. Private Easements • 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. Private Easements • 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. Private Easements • 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. Public Easements • Right and enjoyment of easement is granted to public or community • Can be created in three manners • By dedication • By prescription • By condemnation

22. Public Easements • 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. Public Easements • 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. Public Easements • 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. Public Easements • 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. Public Easements • 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. Public Easements • Termination of Public Easements • Abandonment • passive • Vacating a dedicated plat • active