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Property II
South Texas College of Law Houston
Moya, Olga

Property 2

Fall 2015

Professor Moya


1) You get out of life what you put into it.

2) When a legal problem gets complicated, you break it down and into smaller problems and take each problem on it’s own.

3) Practice random acts of kindness. Smile and laugh, it does the body and the mind good! It lightens your world, you burdens and your day and also, those around you.

4) You will be more successful in Life and at Work by practicing diplomacy, not defiance

5) No one really cares how much you know, until they know how much you really care.

I. Express Easements: look to time and intent of parties at the conveyance of E.

-Easement: right to use.

Dominant Estate: is benefitted by the Easement

Servient Estate: is being burdened by the Easement. (Fee Simple of property)

Express Easements arises only when landowner agrees to burden their land & do so in writing.

A) Classification and Manner of Creation

To create an Express Easement:

1) SoF must be in writing

2) MUST ID grantor & grantee

3) Contains words manifesting an intent to create an easement

4) MUST be signed by grantor

5) Dated

Rule of Law

– look at the intention by the parties, by instrument, factual circumstances, situation and subsequent acts by the parties.

– Easement provides usage of the land but not ownership (by the D.E.)

Rebuttable Presumption

– Fee Simple Title is presumed to be intended to pass by a grant of real property unless it appears from the grant that a lesser estate was intended.

Rule of Construction

1) Intention of the parties is to be ascertained by a fair consideration of the entire instrument w/o emphasis on any particular part of the document

2) Words construed in context & construction adopted that gives effected to all words

3) Grant is construed to be in favor of grantee

4) Right of Way is used in deed to indicate right of passage being reserved

5) Instrument as a whole should indicate easement UNLESS the whole instrument indicates parties intended the passage of fee title

6) Consideration must be given to the situation & circumstances of the parties at the time of the execution of the deed to determine what was in their contemplation at that time

7) Consideration of the following factors:

a) Intention of the parties – amount of consideration

b) the particularity of the description of property conveyed

c) the extent of the limitation upon use of the property

d) the type of interest which best serves the manifested purpose of the parties

e) the peculiarities of wording used in the conveyance document

f) to whom the property was assessed & who paid the taxes on the property

g) how the parties to the conveyance or heirs, assignees, etc. have treated the property


Look to who has paid the taxes & kept up the property. The owner of the property has the right to use & enjoy their land.

If there are several inferences to a limited purpose of the conveyance (through the document as a whole) the intent of the parties was to create a ROW and not fee title.

B) Interpretation and Extent

Easement Appurtenant: easement is for the benefit of another parcel of land

Easement In Gross: easement is not a benefit to another parcel; benefits entities not adjacent properties

General Rule: owners cannot extend an easement appurtenant to non-dominant land.

Rule of Law

– An E-appt to one parcel of land may not be extended by the owner of the D.E. to other parcels owned by him, whether adjoining o


*Prescriptive Easement- prescribed, not written from govt. Not expressed, declared by operation of the law (Judge). Serves same purpose as adverse possession.

D) Termination and Extinguishment

(1) Easement can be extinguished if there is a time limit expressed in document (time limits)

(2) Loss of purpose of E

(3) Formal & written release of E – meet SoF

(4) Abandonment: unclear & unequivocal manifestation of intent to relinquish easement rights. Non-use alone does not equate legal abandonment.

(5) Misuse or overuse that cannot be corrected

(6) If burdened parcel was sold to someone w/o notice it AUTOMATICALLY extinguishes the easement

(7) Adverse prescriptive use by S.E. owner for the statutory period. D.E. owner has duty to evict S.E. from obstructing their use of E.

(8) Merger – one effected landowner of Appt E buys out the second effected parcel

(9) Extinguishment by Estoppel when D.E. owner (E owner) obstructs their own use of E, acts or fails to act in such a way it leaves the S.E. owner to believe it has been abandoned or extinguished. S.E. detrimentally relied on the fact you rely on act & now S.E. can build on E. – Make investments that hinder use of E.

(10) (Modern) Changed Conditions – where change conditions exist bc the E has become unreasonably burdensome or obsolete or economically wasteful the Ct will extinguish the E.

* Non-use is evidence of abandonment bust dose not EQUAL abandonment