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

Property II


Fall 2015

1) 18: Express Easement: Classification, Manner & Creation

a) Interests in property can be either possessory or non-possessory

i) Possessory Interest: The owner has a present or potential right to the possession of real property

ii) Non-possessory Interest: The owner has certain rights in real property possessed by another person.

b) Types of Servitudes

i) Servitudes are non-possessory rights in the property (easements, real covenants, equitable servitudes, profits, and licenses)

(1) The land owned or possessed by one party “serves” another party 

(2) Usually arise from formal agreements evidenced by written documents 

ii) The obligation/benefit of a servitude usually “runs with the land” 

(1) The creator of the servitude is usually responsible for complying with the servitude only while they own the land

(a) A subsequent owner of the land is usually required to comply despite the fact that he/she never expressly agreed to comply

(2) Holder of an easement or other servitude can only use it while owning or possessing the land benefited by the easement

(a) New owner of the land can enforce the servitude even if there is no express assignment of the benefit

c) Easements (R2d of Property § 450)

i) An easement is an interest in land in the possession of another which

(1) Entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists; 

(2) Entitles him to protection as against third persons from interfering in such use or enjoyment; 

(3) Is not subject to the will of the possessor of the land; 

(4) Is not a normal incident of the possession of any land possessed by the owner of the interest; 

(5) Is capable of creation by conveyance.

ii) Servient Estate: the land subject to, or burdened by, an easement 

iii) Dominant Estate: the land benefited by the easement 

d) Affirmative and Negative Easements

i) Affirmative Easements

(1) The holder has the right to do things which, were it not for the easement, she would not otherwise be permitted to do 

(2) Treated as affirmative covenants 

ii) Negative Easements

(1) The holder may, by virtue of the easement, prevent the possessor of the land burdened by the easement from performing acts upon the land that he would otherwise have a legal right to perform 

(2) Treated as restrictive covenants 

iii) Neither negative nor affirmative easements require any affirmative act by the owner of the servient estate 

(1) Owner of the servient merely refrains from interfering with the rights of easement holder

e) Appurtenant Easement or Easement in Gross

i) Appurtenant Easement

(1) There’s always going to be 2 pieces of property; usually contingent

(a) Dominant estate is the benefited property

(b) Servient estate is the burdened property

(2) Attach to and benefit a particular parcel of land

(a) This parcel is called the dominant estate

(b) When the dominant estate is transferred, any easement appurtenant to it automatically passes with it

(c) An appurtenant easement cannot be conveyed without simultaneously transferring the dominant estate

(i) “Just as the tail must follow the dog, an appurtenant easement must follow the dominant estate”

(3) If you intend to create an appurtenant easement, you should expressly designate the easement as appurtenant to a dominant estate

(4) If the document does not describe the easement as appurtenant or in gross

(a) Document will be construed against the grantor 

(b) Presume that appurtenant easement was created unless there is strong evidence to the contrary 

(i) Most easements are intended to be appurtenant, reasonable to assume

(ii) Since appurtenant easements automatically pass with a grant of a dominant estate, a finding of appurtenancy tends to protect the grantee of the dominant estate from the consequences of an inadvertent failure to include a separate grant of an easement with a grant of the fee

(iii) Any detriment of the servient estate is usually offset by the benefit to the dominant estate 

ii) Easements in Gross

(1) Generally, these easements do not attach to and benefit a particular parcel of land

(a) They may be personal to the easement owner

(2) Commercial Easements in Gross

(a) A railroad that has permission to pass and repass on land

(i) Commercial easement because there’s no benefit to other party, just to the company

iii) Conservation Easements

(1) A legal agreement between a landowner and a land trust or government agency that permanently limits uses of the land in order to protect its conservation values

(a) For the greater good

(i) Its why you allow tax benefits, allow government to take land for it

(2) Uniform Conservation Easement Act (UCEA)

(a) A non­possessory interest of a holder in real property imposing limitations or affirmative obligations that 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, archeological, or cultural aspects of property 

(3) Conservation easements are express in gross negative easements: property interests in restricting the uses of servient estates

(a) They can impose affirmative obligations on servient estate owners to achieve the easements’ intended conservation purposes 

(b) The typical conservation easement perpetually restricts the use and development of the land to those activities consistent with the easements stated conservation purposes 

(4) The easement is recorded in the deed records so that all subsequent holders of property interest in the land are bound by it

(a) Conservation easements may be donated by private landowners or may be sold to qualified grantees or may even been imposed on landowners by government agencies and conditions of land use or environmental regulatory permits 

(b) The actual practice of conservation easement creation is driven in large part by federal tax policy that recognizes the public benefit of privately donated conservation easements 

(i) Can get tax deductions and estate tax benefits for donating land

(5) Requirements to receive tax benefits

(a) Conservation easements must be perpetual and must be exclusively for conservation purposes:

(i) Preservation of land for outdoor recreation or education; 

(ii) Protection of natural habitats for fish and wildlife; 

(iii) Preservation of open space; and 

(iv) Preservation of historical land and structures 

f) Creation of Express Easements

i) Must comply with the usual formalities for the creation or transfer of an interest in real property

(1) In writing and signed by the grantor of the easement or of the estate from which the reservation is carved

ii) In most cases, easements are created by a written instrument in the form of either a “grant” of an easement to the grantee, or a “reservation”/ “exception” of an easement in favor of the grantor who conveys a fee or other interest to another

(1) Grant of easement: Lisa, owner of Blackacre, grants Matt a right of way easement across it 

(2) Reservation

(a) Retains for the grantor a newly created property interest 

(b) Ex: Nina, owner of Blackacre and Whiteacre, grants Whiteacre to Orin, reserving a right of way across 
Whiteacre in favor of Nina 

(i) Nina is conveying her fee but retaining an easement which is a new property interest

(3) Exception

(a) Grantor retains a pre­existing interest in part of the property or recognizes a previously existing property right in a 3rd P by carving it out of the conveyance 

(b) Exception: Alice owns a 100-acre fee tract, and sells “all my 100 acres, retaining a fee, 40 feet wide along the north boundary”

(i) Alice has excepted a strip 40 feet wide from the conveyance 

(ii) Exception because a specified geographic area has been retained with the grantor holding the same interest as she previously held 

(c) Recognition of easement by exception: Ben owns a fee interest in a 100-acre tract, with Carrie having a 
right of way easement over it. Ben sells to Dale “subject to Carrie’s easement”

(i) Ben has excepted the easement from the grant excluding third-party Carrie’s pre­existing legal 

(ii) Ben did not create an easement by exception, but has merely recognized an interest that was 
previously existing 

(d) If you have an exception, dominant estate would have to maintain it 

(e) If it is an exception, it will be construed against the grantor

iii) 3rd P Interests by Reservation or Exception

(1) Majority: Stranger to the Deed Rule

(a) A deed with a reservation or exception by the grantor in favor of a 3rd P does not create a valid interest in favor of that 3rd P 

(b) The grantor must reserve the easement for herself and then transfer it to the 3rd P or transfer the easement directly to the 3rd P before conveying the fee title to the servient estate 

(i) Adherence to this rule may frustrate the grantor’s intent

b) Analyzing the Scope

i) Step One: Look at easement language; if clear and unambiguous, it is given effect

(1) In determining the rights and obligations, the language of the granting instrument must be examined first

(2) Where factors such as width, length, and location of the easement are fixed by the granting instrument, a court may not consider other factors, such as what is necessary and reasonable to the effective use of the easement, in interpreting the extent of the easement

(a) Carefully drafted document increases the likelihood that the intent of the parties will be effectuated

(b) Decreases the likelihood of expensive and disruptive litigation

ii) Step Two: Easement language in light of surrounding circumstances and reasonable expectations

(1) If grant does not expressly and clearly set forth some aspect of the easement’s scope, the court will look to the intentions and reasonable expectations of the parties

(a) Unless it can be shown that the parties intended otherwise, the holder of an easement or profit is entitled to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude

(2) Consider the language used by the grantor in the light of the surrounding circumstances at time of initial grant

(a) Whether the easement is granted or reserved

(i) Easements that are reserved are interpreted more restrictively

(b) The amount of consideration the original beneficiary of the easement gave for the easement

(i) The giving of substantial consideration suggests an interpretation that favors the beneficiary of the easement

(ii) Similarly, if the amount of consideration approximates what would have been paid for a fee (as opposed to an easement) this is a factor that may suggest that the parties intended to convey a fee, rather than an easement

(iii) Must also consider if it is a perpetual easement

(c) The prior use of the servient estate

(i) 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

(d) The purpose of the document

(i) Presume it’s permitted to use as reasonably necessary to carry out the purpose

(e) The subsequent conduct of the parties

(i) 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

iii) Scope of Easement Rules

(1) Easement length, width, and location

(a) When the instrument creating the easement fails to fix the length, width, and location of the easement, but merely establishes a right of way over a particular area, the easement is generally construed to extend over only so much of that area as is reasonably necessary to effect the purpose

(2) Types, frequency, and intensity of uses

(a) An easement owner’s use of the easement for purposes that differ from or exceed the expressly authorized purposes of the easement is a trespass and is not allowed

(i) The grantor and grantee of an easement are assumed to have contemplated a normal increase in the frequency and intensity of use of the easement over the years

(b) Types: New Modes of Uses vs. New or Additional Uses

(i) Courts determine whether particular uses fall within the category or type of easement uses that the parties contemplated when creating the express easement

(ii) New uses may arise as conditions evolve, technology advances, or the easement holder’s activities change

1. Servient estate owner may resist these new uses as being excessively burdensome or beyond what he agreed as an allowed use of his property