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Property II
South Texas College of Law Houston
Moore, Shelby A. Dickerson

Property II Outline
Prof. Moore
Fall 2014
I.          Non-Possessory Interests (Servitudes)
A.         Licenses
–        Defined:  Permission to do something on the land of another; without that authority the act would be unlawful.
–        Basic characteristics.
o   non-assignable to a person
o   revocable at the will of the licensor
o   not an interest in land
o   licensed only for a particular purpose, cannot expand the purpose.
o   Licensee has no cause of action against 3rd party interference (exception: if the license becomes irrevocable then he would have a cause of action.)
–        How to create a license.
o   no need for formal writing
o   only thing that is required is the licensor’s permission; permission can be given orally or it writing or can be implied by the licensor’s conduct.  (i.e. entering to Foley’s; the nature of the business gives you the right to enter the store) Cannot obtain by prescription because the initial use is permissive.
–        Limited license.  Authorizes limited activity; the person who exceeds the scope of that authorization becomes the trespasser. Persons other than the licensee may use the license
–        Assignability.  Any assignment will be rejected.
o   Minority view.  Any attempt to assign will terminate the license, but if the parties intend that the license will be transferable, the courts will allow it. 
POLICY: allowing free transfer
–        Revocability.  License are revocable at licensors will; no notice is required after revocation takes place, even if the licensor has paid consideration; licensor can revoke even if there is a contract with the licensee; licensor can be sued for damages; if the licensor revokes without notice (even w/o k), they must afford the licensee an opportunity to remove themselves from the property (it wouldn’t be the case if you were ejected from a game or a store).
o   Licenses can become irrevocable under two theories:
(1) when the license is coupled with an interest
Example.  The licensee has a license to store cars on the licensors land.  It is irrevocable because you have personal property subject to the license.
Cannot revoke until reasonable time to remove property, or at seasons end.
(2) when the licensee makes expenditure in reliance on the license.    The expenditures can be in money or labor, must be substantial and must be made with the licensor’s knowledge; the reliance must be reasonable.
POLICY: it would be inequitable for the licensor to revoke when the licensee has changed his position based on the license.
Minority (TX).  Requires that the expenditure must be made in part for the licensor’s benefit b/c if you’re gonna allow someone to stay on your land there has to be an add’l benefit.
o   Irrevocable licenses are not perpetual.  They last only for a period of time to allow you to protect you interest.
o   A subsequent purchase of land takes subject to a irrev. license if that person has notice.
o   Majority of jurisdictions do not have the theory of irrevocable license b/c (1) they favor free enjoyment of land, (2) one cannot rely on a license (something so tenuous) 
o   Minority allows irrev. licenses, Texas adds a requirement.
–        Termination of licenses.  Licenses can be terminated by the following methods: (1) transfer or sale of land by the licensor, (2) by death of licensor or licensee, (3) by abandonment or surrender by the licensee, (4) license for specific purpose has been accomplished, (5) seasonal license, (6) (minority)any attempt to transfer.
–        Average reciprocity of advantage:  one is forced to give up rights for the betterment of society as a whole and in the long run, both society and individual relinquishes the right benefit. Looking at individual rights versus greater good of society as a whole. Typically the individual will lose. There is always someone or something that has a greater right over property we think we own.
B.         Easements      
1.         Express Easements: Classification and Creation
–        An easement is a type of servitude (non-possessory right in real property owned by another). Generally servitudes as a whole run with the land.  The creator of the easement must abide by it while he owns the land and the successor to the creator must abide by the easement even if she does not agree with it. 
–        Defined: An interest in land in the possession of another which entitles the owner of the interest to limited use and enjoyment, entitles him to protection against 3rd persons, not subject to the will of the possessor, not a normal interest, and is capable of being created by conveyance. (Restatement § 450)
–        An easement does not, as a holder, give you the right to continually occupy the easement.  It only grants a right to use.
–        Easements are subject to the Stat. of Frauds and must be signed by the grantor (the party to be charged)
–        Unless you have an exclusive easement, anyone can use the easement (like a roadway).  If you’re using it at the same time as someone else you cannot interfere with the other person’s rights to use the easement.
Party 1                         Party 2
Servient estate à              burden                         benefit             ßdominant estate
–        Easements are classified as either affirmative or negative
o   Affirmative easement.  Allows dominant estate holder to do something with servient estates land that normally would not be permissive.
Example.  Granting the right to cross the servient estate holder’s property.
o   Negative easement.  Prevents a person from doing something with the land.
Example.  Neighbor cannot build multi-family dwellings on land.
–        Easements are also classified as either appurtenant or in gross.
o   Appurtenant.  The easement attaches to a particular piece of land (usually you’ll have two pieces of adjacent prop).
o   In gross.  The easement does not attach to and benefit a particular piece of land. (usually seen when there isn’t two pieces of property, nor appurtenant to another parcel of land)
Example.  Granting an easement across a piece of property to a railroad.  Since

, indicating easement instead of fee
§  Lamar County admitted that it never had anything more than an easement.
–        Hurst v. Baker.  Is this interpreted as either a fee or an easement?  P claims this is a fee based on the intent of the original grantor.  D claims this is an easement.
o   Rules.  These documents have to be construed in the favor of the grantee.  Court does not want to allow the grantor to come in and testify favorably for his position.  Unless there is a clear limitation, you have to construe a fee.  Look at the intent of the parties at the time the conveyance was made.  If the intent is clear, that’s as far as you go, the language must be given effect.  (The court finds the language is clear enough to show P had the responsibility to maintain the roadway and the appellees could not convey a fee.).  Absent language as to purpose, the Ct says that you have to construe a fee. 
§  the interpretation of the deed will be controlled by the intent of parties at the time the agreement is made
§  where there is ambiguous language, you construe in favor of the grantee
§  the deed must be construed so that the entire interest in the land is conveyed
o   Holding: The language of the deed is controlling.  They review de novo and looking solely at the language it is clear to the court that a fee was intended to be transferred.
o   Policy.  (Of the trial court) Strips of land should be considered as easements.  (of the appellate court)  Deferring to the intent of the original granting parties outweighs any equitable concerns between the current parties.
Principal Problem.
–        You want to have the least intrusive means on someone’s land, that would mean an easement in favor of Barb.
2.         Express Easements: Interpretation and Extent
–        You have to look at the language to determine the purpose of the easement.  If the boundaries are fixed, the court must give effect to the intent of the boundaries. If the boundaries are not fixed, the court is expected to give effect to the intent and expectation of the parties.
–        How do we determine what is reasonable under the circumstances?
o   Is the easement granted or reserved?
o   Any ambiguities are going to be construed strongly against the grantor
o   If there is some consideration, then its going to be an easement
o   Look at the prior use of the servient estate
o   Look at the subsequent conduct of the parties
o   Look at the purpose of the easement