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Property II
South Texas College of Law Houston
Moya, Olga

Assignment 18 EE: Classification and Manner of Creation

Bundle of rights
– right to exclude others
o use & occupancy of others
o not absolute
– right to transfer (alienation) freely
o sell, donate, devise,
– right to full use & enjoyment
o to possess almost in anyway he wish, except:
§ restriction, nuisance, covenant, legal taking
– right to grant others of non possessory rights
o to cross, use or profit
§ servitude: easement & covenant
– right to improve value of the land

Rule of Law:
well established and settled substantive legal principle. Has the force of the law and clearly enforceable

Rule of Construction:
rule to construe or interpret the legal instrument, to assist to interpret an legal document (p.345), Not legally enforceable.

Public of policy:
principle and standard regarded by the court as being fundamental concern of the whole society. May be argued to grant or deny injury.

Assignment 19 EE: Interpretation & Extent

Limitation on easement use:
– Use from normal reasonable & foreseeable increase (evolutionary use), not different kind or additional use (revolutionary use)
– Without unreasonable burden to the servient estate
– Location: once fixed, can not be moved without both parties consent (majority view)
– The benefit of the easement is not extended beyond the dominant estate at the time the easement was created.
– Allow easement owner maintain / repair the easement if silent without interfere
– Equitable remedy / Remedy in law: injunction order to allow or stop doing something (fair) – preferred over self help

Assignment 20 EE: Succession

Appurtenant or In Gross:
– Document clear: full effect (benefit / burden run, appurtenant / In Gross)
– Silent: Intent of the parties, presumption to be appurtenant, surrounding circumstance,

Transfer:

Appurtenant: B has benefit and owns the dominant estate. A has burden and owns the servient estate
– Clear Document (B -> C, A -> D)
– If silent:
o Benefit presumed to be transferred, even n

ment owner:
– Severance of the appurtenant easement
– Formal release of the parties in writing
– Abandonment
o Clear manifestation of intent to relinquish – non-use alone is not abandonment automatically, only evidence
– Misuse or overuse that can not be corrected (or won’t correct) – get court order

Subsequent event by servient owner:
– Burden parcel sold without notice, if not recorded
– Adverse prescription use after Statuary period

Subsequent event by either:
– Merger: dominant parcel buys out the servient parcel
– By Estoppel: dominant estate owner acts or fails act in such way that leads servient owner to believe the easement has abandon the right and rely on and make investment or development (detrimental reliance)

Subsequent by others:
– Eminent domain
– Mortgage foreclosure
Tax sale