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Property II
South Texas College of Law Houston
Moya, Olga

Property II, Prof. Olga Moya, Spring 2015

Professor’s Remarks & Notes: Life lesson #1 -“What you put in really does affect what comes out.”

Rule of Six – able to learn in many different ways, have at least 6 different ways where you can retain, learn, and recall. The Rule of Six for true LEARNING of the type that you will be able to RECALL info at a much later date (taking the course exam, or taking the bar exam) entails learning by using different parts of your brain. 1) Read for class (visual reading skills), 2)Briefing the cases (T analysis and creating the Lists) gets you to write down the important items read but, doing it in a different fashion, 3) come to class and listen, ask questions,(auditory), 4) Review the cases, problems, lists, with a study group or study buddy gets you to orally teach each other and regurgitate what you are learning, 5) write outlines (gets you to mentally and physically organize the materials so you see the trees and the forest) This should create some “aha” moments! Told you this was going to be a “turn on”, 6) Take practice exams under exam conditions and discuss your answers with a study buddy. This forces you to see if you can apply al that you’ve learned to a hypothetical problem (a lot like my exam questions) and to force you to write full, comprehensive, well organized answers under time constraints. Thus SIX steps to truly LEARNING the materials. Apply the Rule of SIX to all courses.

**Every word in the book is important. There will usually be 3 cases per assignment. You will read the cases after reading the black letter law then you will answer the hypothetical problem. Recommends “Understanding Property” and “Student’s guide to covenants and easements” text books. The exam will be 3-hours all essay.

Create four separate lists as you read the material, title each list as follows:

(1) Rules of Law

· Rules of law are well established and settled substantive legal principles.

· Easement Appurtenant are automatically transferred when the dominant estate is transferred. (the tail follows the dog)

· Rules of law have the force of law.

(2) Rebuttable Presumptions

· There will be the word “presume” A presumption is when the law presumes X to be true if Y is present but it is always rebuttable.

· If the recipient of the easement owned a nearby parcel of land that would benefit from the easement, it is presumed that an appurtenant easement was created unless there is strong evidence to the contrary. (Page 349).

(3) Rules of Construction

· These are the rules in construing legal instruments (i.e. rules to assist an interpretation of an ambiguity). They do not necessarily have the force of law.

· Examples are on page 355 “The paramount rule of construction is that the intention of the parties, and the grantor in particular, is to be ascertained by a fair consideration of the entire …..

(4) Public Policy.

· Public policy are principles and standards regarded by the courts as being a fundamental concern to all of society. Thus, one can argue that a certain action or a holding would protect specific strong public interests. OR, one can argue that it would injure those interests for the public at large. ETPU means the Right to Exclude, Right to Transfer, Right to Possess and Use. The owner has the right to use his land in any way he wishes as long as the use is not a nuisance and complies with any restrictions (statutes or ordinances, easements, covenants, regulatory takings, zoning, and eminent domain). Concept is the bundle of rights (sticks).

Every time you read keep the aforementioned in mind. ***

The big question is can you obtain a property interest in land that you do not own or lease? YES!! Easements, covenants or servitudes.

Express Easements: Classification and Manner of Creation

1. Introduction: The Concept of Servitudes

Servitudes give the owner the right to use or prevent uses in land that he does not possess. One reason this is allowed is for the benefit of society (public policy) such as utilities.

· EX. if you are landlocked and cannot get to the road, the right to cross your neighbors land is extremely beneficial to get you to the road (right to cross). This would be in the form of an easement.

· EX. the right to prevent a neighbor from altering her property. This would be in the form of a covenant. POA – Property Owners Association provides the covenants and are enforceable against the landowner and enforceable by the landowner against his neighbor.

· EX. the right for utility companies to maintain and place cables, pipe lines, wires, are easement in gross (being its personal to the utility company). Easements in gross are assignable and are not automatically transferred. People have to make sure they are capable of being assigned.

Easements and covenants may burden and/or benefit successors of the land. The cost of purchasing an easement should be a lot lower than purchasing a fee simple.

Interests in real property can be classified as either possessory or non-possessory. The owner of a possessory interest has a present or potential right to the possession of real property. It allows for general uses of the property. In contrast, the owner of a non-possessory interest has certain rights in real property possessed by another person. These are restricted or limited use of such property interests. Some of these non-possessory rights are called “servitudes.” In other words, the land owned or possessed by one party “serves” another party.

Usually, all of the houses in a subdivision of single family houses are subject to servitudes of various types. For example, each owner of a house in a subdivision may have the right, by virtue of an agreement, to prevent her neighbor from using his property for anything but residential purposes. Such a right in the land of her neighbor is one type of servitude, a “restrictive covenant” or “equitable servitude.”

In situations where lot owners in the subdivision may be required, by virtue of an agreement, to make monthly or annual payments to be used for the maintenance of common facilities, such as tennis courts or bike paths, that are maintained by a homeowners’ association. This type of servitude is called an “affirmative covenant.”

Within the subdivision, various utility companies are likely to have easements permitting them to lay pipes and wires across land owned and possessed by others. These, too, are a form of servitude denoted as an “affirmative easement.”

Condominiums, whether residential or commercial, have a legal structure that depends on the law of servitudes. Each owner of a unit or apartment within the condominium promises to pay for the maintenance of the condominium and to regulate his conduct in accordance with the rules governing the condominium.

The legal structure of the modern shopping center also extensively uses the law of servitudes. Regardless of whether they own or lease the land they occupy, each store will require rights of access and parking throughout the center. By means of agreement with developers, these rights take the form of various types of servitudes.

Servitudes usually arise from formal agreements evidenced by written documents. The law governing servitudes is governed more by property concepts than by contract law. In this regard, the obligation of a servitude usually “runs with the land.” That is, the creator of the servitude usually is responsible for complying with the servitude only while he or she owns the land. A subsequent owner of the land (the successor to the creator of the servitude), is usually required to comply with the servitude despite the fact that she never expressly agreed to comply. Similarly, the benefit of a servitude often runs with the land benefited by the servitude.

**Easements, real covenants, and equitable servitudes are among the most important types of servitudes.

Two other types of servitudes are profits and licenses. A profit is the right to take material such as soil or wood from the land of another. The law governing profits corresponds to that governing easements. A license resembles an affirmative easement. The licensee has the right to enter on and use land possessed by another. For example, one may have the right to hunt on another’s land, or one may purchase a license (a “ticket”) to view a performance in a theater. However, a license is usually revocable at the will of the possessor of the land, whereas an easement is of a more permanent nature. Although the possessor of land may have the power to revoke the license, she may be liable for damages for a wrongful revocation.


There are five basic easements that are classified accordingly by the manner in which they are created:

(1) Express Easements – in writing

· These arise only when the land owner agrees to the easement.

The remaining four easements are non-consensual, they are implied by law.

(2) Easements Implied from prior existing use

(3) Easements by necessity

(4) Prescriptive Easements (adverse possession)

(5) Irrevocable License or Easements by Estoppel (i.e. detrimental reliance)


The easement holder merely has the right to use


A competent draftsperson who intends to create an appurtenant easement will expressly designate the easement as appurtenant to a described dominant estate. In cases where it fails to describe such easement, the courts will determine the nature of the easement from the surrounding circumstances.

If the recipient of the easement owned a nearby parcel of land that would benefit from the easement, it is presumed that an appurtenant easement was created unless there is strong evidence to the contrary. There are three reasons for this presumption of appurtenancy:

· First, since most easements are intended to be appurtenant, it is reasonable to assume that the questioned easement was also so intended, at least in the absence of contrary evidence.

· Second, since an appurtenant easement passes automatically with a grant of the dominant estate, a finding of appurtenancy tends to protect the grantee of that estate from the consequences of inadvertent failure to include a separate grant of an easement with a grant of the fee.

· Third, any detriment to the servient estate is usually offset by a benefit to the dominant estate.

In Gross

Easements in gross do not attach to and benefit a particular parcel of land. They may be personal to the easement owner.

· EX: Affirmative easement in gross. Kurt, the owner of Blackacre, grants an easement across Blackacre to a railroad company. The railroad company does not own any land in the area. Since the easement is not appurtenant to any parcel, it is an easement in gross.

Conservation Easements

Common law does not recognize negative easements in gross. A conservation easement is a “legal agreement between a landowner and a land trust or government agency that permanently limits uses of the land in order to protect is conservation values. The Uniform Conservation Easement Act (UCEA) provides the following more detailed definition of conservation easement: “a non-possessory interest of a holder in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of property.

Conservation easements are express in-gross negative easements: property interests in restricting the uses of servient estates. They can also impose affirmative obligations on servient estate owners to achieve the easements’ intended conservation purposes. These purposes might include removing invasive species, fending the land and excluding others, maintaining historic structures in good repair, and allowing public access and periodic inspections. The typical conservation easement is recorded in the deed records so that all subsequent holders of property interests in the land are bound by it (it runs with the land). The landowner and his or her successors continue to own, use, possess, and transfer the servient estate, but are subject to the restrictions (and affirmative obligations) in the conservation easement.

Authorized holders of conservation easements include large national land trusts focused on ecological conservation goals, such as the Nature Conservancy, state agencies seeking to preserve prime agricultural lands from development, and local historic preservation organizations that hold conservation easements in historic structures and facades. Statutes vary regarding who may hold these easements, their permissible or mandatory length, and the purpose of which conservation easements may be created. State legislation authorizing conservation easements fills a void left by the common law.