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Property II
South Texas College of Law Houston
Moya, Olga

Property 2 | Moya | Fall 2016
Exam tips:
Call of Q
As counsel for _____ I would advise my client the following. There are ____ issues I will discuss in the following order.
**Black letter law, facts, policy, CASES!
US Supreme Court cases by name, other cases (crazy cat lady, greedy condo, chicken case)
Detailed on facts
*Physical taking note cases
Part 1 & 2: Hypos like PP
Part 3: Long answer. Direct questions — What is the doctrine of adverse possession, policy cases, elements
Part 4: short answer
5 life lessons
Making assumptions: “You don’t give us a SOL so I will assume…”
IRAC format
EASEMENTS (100% on exam)
18: Express Easements – Classification and Manner of Creation
E – Right to Exclude
Others from use or occupancy of the property
Not absolute (police pursuing fleeing criminals)
Owner may grant others the legal right to use or cross the land (easements [cross land], licenses [come into home], and profits)
– temporary and revocable (sliver of pie)
Anytime you have a guest over = license
– right to use someone's property; if properly created, it is a permanent right for the original contracting party and for future easement owners (slice of pie)
Can benefit or burden present and future parties (successors to the land)
– whole damn pie
T – Right to Transfer/ Alienate
Right to transfer owner's property rights to others (sell) – fundamental right
Owner may donate his land to charity or any person/ org – transfers ownership rights
Owner may devise his land upon death (will)
Free market – owners can transfer property freely (America likes this)
P – Right to Possess
U – Right to Use
Fee simple – can use in any way owner wishes,
So long as the use is not a nuisance to others, and
So long as the use complies with all statutes, ect that restrict how the owner can use her land (restrictive covenants, governmental or regulatory takings, zoning)
Fee simple – has all ETPU rights
Can one obtain a property interest in land that one does not possess or own? Yes
– property interest in land that one does not own or lease (owned by someone else)
Easements can be transferred to future successors (benefit and burden)
If owner sells his land, the burden of the easements may run to the buyer
Umbrella under which covenants and easements fall under
Property is serving the interests of others; property is burdened (ex: owner's property is burdened by the easement)
Gives the owner of the servitude the right to use (easement) or prevent specific uses of property that the servitude owner neither owns nor possesses (covenant)
Affirmative Easement: right to cross neighbor’s land
Dominant estate owner (adjacent property), servient estate owner (burdened)
Negative Easement: right to prevent neighbor from altering property (restrictive covenant)
Right for utility companies to place wires, ect on property
Easements in Gross – benefited party doesn’t necessary own adjacent land (commercial entity)
Non-Possessory v. Possessory
– Present, but non-possessory property interests
Only allows for a very specific or limited number of uses
Or right to prevent use
Fee simple and leasehold estates – Present and possessory interests
Allows for general uses – work, live, have a party
Look at price when dispute over whether there is an easement or a fee simple conveyed
Price for an easement will be less than price for fee simple (only getting a slice of the pie)
Purpose of Easements and Covenants
Efficient adjustment of land use externalities
Ups value, use and enjoyment of property
We want the best and most productive use of the land – we don’t want land to be abandoned and useless
Servitudes overcome obstacles to the best use of land
Rural pristine property, want to buy to develop. Look to property with easements already put in place for water, electricity, and multi-family use only, etc.
5 Categories of Easements – classified according to manner of creation
1. Express Easements
2 parties agree; Put in writing – must meet the SOF
Arise only when owner consents to burdening his land (usually for price/ consideration)
Other 4 arise as a matter of law – usually non-consensual and usually not in writing
2. Easements Implied from Prior Existing Use
3. Easements by Necessity
4. Prescriptive Easements / Easement taken by Adverse Possession
5. Irrevocable Licenses/ Easements by Estoppel (detrimental reliance)
– non-possessory right to use land in the possession of another
Does not give the easement holder any right to possession of the land
Can use road, but cannot set up tent
Right to ingress and regress – use road
Viewed as a property interest in land – more than a contractual interest/ right
Subject to statute of frauds
Owner cannot hold an easement in his own land
Statute of Frauds
Must be in writing
Identify the grantor and the grantee
Contain words manifesting an intent to create an easement
Describe affected land(s)
Easement in Gross – one property affected
Be signed at least by the grantor
Exceptions to SOF
Estoppel – detrimental reliance
Part performance
SOF 3 Functions
Channeling – allows 2 negotiating parties to distinguish between the oral negotiations and the final legal agreement
Cautionary – cautions the parties that they are entering into a serious business property binding contractual relationship
Evidentiary – proof; recorded in county records; evidence for courts to resolve future disputes between the parties
– easements and covenants are usually written into a document called a deed
Four Corners Test – Courts look first at 4 corners of document
If clear and unambiguous, court gives full effect to document
If unclear or ambiguous (malpractice!) → then the courts interpret by applying rules of law, rules of construction, presumptions of law, policy, and other outside factors
Rule of Law – well established and settled substantive legal principles
Ex: Easements Appurtenant are automatically transferred when the dominant estate is transferred (the tail follows the dog)
Generally, rules of law have the force of law (top of the pyramid of how much weight the court gives to)
Presumption of Law
Rebuttable presumptions
Ex: presumptions of appurtenancy – if recipient of the easement owns a nearby parcel of land that benefits from the easement, it is presumed to be an appurtenant easement unless strong evidence to the contrary
Rules of Construction
Rules used to construe/ interpret legal document – assist in interpreting a writing, deed, or conveyance
Do not necessary have the force of law
Used to dissect and interpret a document, especially when it is ambiguous
Ex: in determining whether a deed intended to convey a fee simple title or an easement:
amount of consideration,
particularity of the description of the property,
extent of the limitation upon the use of the property,
type of interest which best serves the manifested purpose of the parties,
peculiarities of working used in the conveyance document,
to whom the property was assessed and who paid the taxes, and

strip of land not to exceed 40 ft to be used as a right of way. As further consideration for this right of way, Iowa Ditch will …” (Iowa Ditch sold to NW Realty.) NW Realty sought injunction to require Jacobs to remove dirt from property.
Issue: Whether the Smith-Iowa Ditch deed conveyed a fee title or only a right of way easement
Holding: Right of way easement; for D
#1 – Ascertain the intention of the parties (especially the grantor)
Entire instrument as whole
Give effect to all words
Give meaning that is consistent with and will effectuate the manifest intention of the parties
Grant construed in favor of the grantee and against the grantor
: Fee simple title is presumed unless it appears from the grant that a lesser estate was intended
The term “right of way” usually indicates that only an easement is being conveyed or reserved. PRESUMPTION – deed creates easement, unless the deed, as a whole, indicates that the parties intended to pass a fee title.
If construction of instrument leaves intention of parties in doubt (ambiguous), look at circumstances of the parties to determine what was within their contemplation (→ go to factors)
Only go to factors if deed is ambiguous
Amount of consideration (price)
Particularity of the description of the property conveyed
More specific, more likely a fee
More vague, more likely an easement
Extent of the limitation upon use of the property
Easements restrict use
4. Type of interest which best serves the manifested purpose of the parties
Would grantor want to bisect his land?
Peculiarities of wording used in the conveyance document
To whom the property was assessed and who paid the taxes on the property
How the parties to the conveyance, or the heirs or assigns, have treated the property
Did they treat it like they owned it?
4 Corners: Deed 1) grants all of Smith's interest in the strip of property, and 2) a description of the property which restricts the grant to an easement for a right of way = ambiguous
Degree of precision of description of the strip of land – lacking; does not indicate width or final location (easement)
Easements – don’t require definite statement of width, dimensions, or exact location
Fee title – requires reasonable certainty of boundary
Use of words “over and across” when used in conjunction with a restriction of the use as a right of way, is considered to be evidence that an easement was intended
Restrictions upon use – Deed clearly restricts use to right of way for irrigation
Whether the rights granted will be best served by an easement or a fee estate for the manifested purpose of the parties
The indefinite but restricted width and length of the grant suggests that any use other than an irrigation ditch is unlikely – no specific measurement
Iowa Ditch never paid property taxes on strip
Quitclaim deed – cheap, indicative of easement