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

9. 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.

10. 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.

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

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

24. 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.

25. 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

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 Silent Rule 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.

51. 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.

52. 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.

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

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

55. 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.)

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

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

58. Good luck on your exams!!