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Property II
South Texas College of Law Houston
Moya, Olga

Property II Review – Professor Moya
South Texas College of Law – Fall 2011
Fundamentals of Modern Property Law – Sixth Edition
Property is about the bundle of rights of OWNERSHIP that the law is trying to protect:
·         Right to TRANSFER – this is often known as the right to ALIENATE
·         RIGHT TO POSSESS         
·         RIGHT TO USE
Rules of law are settled substantive legal principles – they are the law..such as EM Appurtenant are automatically transferred when the dominant estate is transferred – THE TAIL FOLLOWS THE DOG..that is a rule of law…
There is rebuttable presumptions of the is what they will generally go for but they are rebuttable…
Rules of Construction are the rules used in ‘construing legal instruments’ – they are used to assist in the interpretation of a writing..trying to find some intent that is not clearly expressed
Rules of Construction:  Caveats
1.       If the drafting is NOT ambiguous, these rules do NOT apply and the clear language is given effect
2.       Further, if the width, length, and location of the easement are fixed by the granting instrument, a court may not consider any other factors, such as what is necessary and reasonable to the effective use of the easement, in interpreting the extent of the easement.
The Rules of Construction   From Northwest Reality v. Jacobs
3.       Grantor’s Intent
4.       Give effect to all the words
5.       A grant will be construed in favor of the grantee and against the grantor.  The presumption is that the grantor intended to pass all that he had unless clearly indicated otherwise.
6.       The Term Right of way usually conveys only an easement
7.       Consideration must be given to the situation and circumstances of the parties at the time it was drafted.
Factors From Northwest Reality v. Jacobs
1.       Was a strip of land conveyed?  Public policy holds that two parcels separated by a small strip owned in fee is disfavored.
2.       Consideration.  The less the consideration reflects the full market value of the property, the more it appears to be an easement.  The greater the consideration, even if an easement, the broader the use.
3.       Description.  The description of an easement is not as detailed as the description of a fee.  Using the words such as right of way, etc.
4.       Prior Acts.  If the land was used in a certain way before the easement was created, this may suggest that a continuation of that use was contemplated by the parties.
5.       Subsequent Acts of how the parties have treated the conveyance.  If immediately after the creation of the easement a certain use was tolerated or accepted, this implies that such a use was contemplated by the parties when the easement was created.
6.       Reservation vs. Exception.  Easements that are reserved are interpreted more restrictively since ambiguities in a deed are generally construed against a grantor.
7.       The use restrictions on the land.  The more limited use of the land the more it appears to be an easement.
8.       The purpose of the conveyance (ingress and egress would tend to signify an easement). 
Public Policy is the standards regarding by the courts as being a fundamental concern to the entire public…SO…ONE CAN ARGUE THAT A POSITION WILL PROTECT A STRONG PUBLIC INTEREST..such as the right to transfer property…the right to alienate..the right to rent your property…the right to full use and enjoyment of land…
EM and CV are both kinds of SERVITUDES…
They are property interests..they are more than just K’s…a K only is between the named parties…they only bind the named parties…well the duty of property interest is that they go beyond unnamed successors yet to show up…
1.       Possessory interest allows for general uses of property – i.e. a FEE SIMPLE
2.       Non-possessory interest allows for specific or limited number of uses…
The price or cost of purchasing a servitude is lower than purchasing a fee simple…
The purpose of servitudes:
The efficient adjustment of land use externalities…i.e.: how do we make land most convenient and most productive for land owners…it is not a burden all in all it is a benefit.. the person

In-Gross:  are purely personal and are intended only for the individual or the entity…like a Railroad or a Utility and are for the benefit of the individual or entity only
There are Equitable Remedies and Remedies at Law
Equitable Remedies:  this is an injunction (we want to stop someone from doing something…use the phrase ‘We want to enjoin them.’)
Remedies at Law: are for DAS and these have to be proven
The best EM are the one’s that don’t end up in litigation because the lawyers were visionary and they understood all the possible/potential litigation that could come up…they have to EXPRESSLY STATE THE FOLLOWING WHEN DRAFTING AN EM:
1.  It will meet the SOF
2.  It is an EM
-either an EM Appurtenant or EM in Gross
-if it is an EM in Gross whether it is assignable or not
3. The document should go into the SCOPE of the EM
–          all of the issues that could come around on scope
·         -the width
·         -length
·         -the duration
·         -the conditions
·         -the time frame
·         -what would terminate the EM
If a document is clear the courts will give full force and credit to the document – that is what is in the four corners will be adhered to…if the express document is silent on an issue that is up for litigation then the court is going to look for:
Reasonable and convienent uses to allow the court to determine the intent of the original parties when the EM was drafted..(see the 8 factors from Jacobs)
If the EM is silent as to the location of a EM then Majority rule is that once an EM is fixed then it can not be moved without the consent of the parties
-3rd RS purposes the servient owner to relocate if certain conditions are met