HLSA Property Review

1. Available at http://www.ProfessorBeyer.com HLSA Property Review Easements, Profits, LicensesReal Covenants & Equitable ServitudesApril 23, 2009

2. Easements -- Introduction

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

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

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

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

7. 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

8. 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 – Servient vs. Dominant

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

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

11. 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.

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

13. Express Easements Creation Methods • Grant

14. Express Easements Creation Methods • Grant • Reservation to Grantor

15. Express Easements Creation Methods • Grant • Reservation to Grantor • Exception to Grantor

16. Express Easements Creation Methods • Grant • Reservation to Grantor • Exception to Grantor • Reservation to Third Party

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

18. 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

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

20. Implied by Necessity Owner of Rectangle conveys Oval to Grantee

21. Implied by Prior Use Use must exist prior to severance.

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

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

24. 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.

25. 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

26. Prescriptive Easements

27. Elements under Texas Law • Open & Notorious

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

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

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

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

32. Scope and Transferability of Easements

33. Express Easements • Terms of Easement Deed provisions control

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

35. Scope of Implied Easements • Circumstances from a reasonable perspective

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

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

38. 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].

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

40. 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.

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

42. 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

43. Real Covenants

44. 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.

45. Elements of Real Covenant • Enforceable Promises

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

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

48. 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

49. 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?

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