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Property II
South Texas College of Law Houston
Moya, Olga


Fall 2016

Professor Olga Moya

South Texas College of Law


Property – Bundle of rights of ownership (ETPU) !!!

1) Right to Exclude

– Right to exclude others from the use or occupancy of the property

– Not absolute (EX: Police may use to catch fleeing criminals)

– Owner may grant others the legal right to cross or otherwise use the land (EX: Easement)

2) Right to Transfer

– Right to transfer holders’ property right to others (EX: Sell, donate, devise)

– Most fundamental right

– AKA Right to Alienate

3) Rights to Possess & 4) Right to Use (EX: Servitude)

a) Owner’s right to use land however he wishes as long as use isn’t a nuisance to others &

b) Complies w/ all §, ordinances, or other laws that substantially restrict its use

General Definitions

Restricted Covenant – Prevents/Restricts use of land

Present Possessory Property Interest – EX: FS, leasehold

Present Non-Possessory Property Interest – Allows for a specific or limited # of uses (EX: Servitudes)

Remedy at Law !!!

1) DAS – Restitution for harm incurred that can be proven

2) Equitable – Do or refrain from doing something (EX: Injunction, enjoining)

– Cts in equity can take everything into account

Servitude – A non-possessory right where O has rights in real property possessed by another

Types: Easements, Real Covenants, Equitable Servitudes

Policy: Efficient use of land use externalities (good use of land better > abandoned land)


– One may possess a real property interest in land they don’t own

– Subsequent O usually req’d to comply w/ servitude even if no express agreement

Equitable Servitude – Restricts someone to not do something on their own property

Restrictive Covenant – Grants someone to do something

Easement – A non-possessory interest in land in possession of another for a specific purpose

Goal of Property law

– Peaceful health, safety, welfare, & morals for a coexistence of neighbors & entities.

– Balance between humans & environment

Possessory Interest à General Use

Non-Possessory Interest à Only for Specific Purpose


A non-possessory interest of a right to use land in possession of another for a specific purpose


– Can’t own easement on own land

– Holder has no right to possess & enjoy the tract of land

– Right to use for a limited purpose !!!

– S estate owner continues to have the right of full possession & enjoyment.

– Limitation: Can’t interfere w/ right of special use created in the easement holder

– Easements & covenants go beyond parties to unnamed persons

5 Categories of Easements

Agreed by both parties

Express Easement – Arise when O agrees to burden his land (gives another a non-possessory right on his land)

Arise as a matter of law w/out express agreement

Easement implied from prior existing use – Not in writing but O doesn’t object (ROL)
Easement by Necessity – Must be absolutely necessary (i.e. landlocked, no rd access)
Prescriptive Easements – Adverse possession occurs when a party trespasses & O doesn’t object/exclude (§)
Easement by Estoppel – Irrevocable license, Detrimental Reliance (ROL)


Affirmative Easement – Holder has right to do a particular act on S estate (*Main) !!!

Negative Easement – D Holder has right to prevent burdened possessor (S) from performing acts they’d other be able to do !!!

– Allows D owner to prevent S owner from a particular act !!!

– Law of Covenants applies

Conservation Easement – Express, in-gross, negative easements that restrict the use of servant estates

Types of Estates !!!

Servient Estate – Land burdened by easement

Dominant Estate – Land benefitted by easement



Non-possessory right to the use of another’s land

An easement created to attach to & benefit a certain piece of land. The land for whose benefit the appurtenant easement is created is the D estate. When the D estate is transferred, any easement appurtenant to it automatically passes with it. It doesn’t matter if the easement was mentioned in the conveyance.

– Benefits owner of D estate as possessor

– Runs w/ the land, rebuttable presumption unless evidence otherwise !!!

– Always attaches to D estate (Incapable of existing separate & apart from D estate)

– Inheritable

– Never presume in gross if it can be appurtenant (Burky)

– Landlocked parcels always appurtenant – easement is Rd

– Generally has a larger benefit than just for the person

– Benefits D estate & O’s successors

– EX: Grantor conveys to A, his heirs, & assignees, a portion of property to another, reserving in the deed the right to pass & re-pass across the property, presumably to benefit agriculture of grant-owners land

Non-possessory right to the use another’s land, but is a mere personal interest

An easement for a particular person, not a particular piece of land. An easement in gross is created when the easement interest holder acquires a right of special use in the S estate independent of his ownership or possession of another tract of land.

– Burd

) Amount of Consideration more=FSA, less=Esmt Can she do better with red tights

2) Specificity of description same

3) Degree of Limitation of use same

4) Best interest that serves intent of the parties

5) Wording convey/bargain/sell=FSA, grant=Esmt

6) Recipient & tax-payer taxpayer=FSA

7) Treatment of property by heirs/assignees


Deed w/ reservation or exception by grantor that favors a 3rd party doesn’t create a valid interest favoring the 3rd party ???

Common-Law – Can’t convey property interest to a “stranger to the deed”

– Doesn’t prevent grantor from granting an easement in any land the grantor retains ownership

– Prevents grantor from reserving an easement to someone other than herself in land she’s transferring


Document is clear & unambiguous à Give full force & effect

– Width, length, & location of the easement are fixed by the deed à Ct can’t consider other factors to interpret the easements extent (such as what is necessary & reasonable to its effective use)

Clear Manifestation of Intent

– When an express intent to convey an easement is manifest, it can’t be undermined by language demonstrating otherwise (Greaves)

– Don’t use ROC

Document unclear & ambiguous à Look to intentions & reasonable expectations of the parties

– Unless there’s evidence the parties intended otherwise, the holder of an easement or profit is entitled to use the S estate in a manner reasonably necessary for the convenient enjoyment of the servitude

Ambiguous instrument (NW Realty)

– Intent of the parties, particularly the grantor, must be ascertained by considering all the language in the instrument


Anything not in writing is subject to rules of law, construction, presumptions, etc !!!

Determining Intent of Parties re: Scope

1) Easement granted or reserved

– Reserved = Interpret more strictly

– Ambiguity generally construed against grantor

2) Amount of consideration original beneficiary paid for the easement

3) Prior use of land where easement is located

4) Subsequent conduct of the parties