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Property II
South Texas College of Law Houston
Moya, Olga

Property II – Moya – Fall 2017
Moya’s Life Lessons
In law (studies and practice) and in life, “Input dictates output.” No room for slackers, procrastinators, or short cutters.
When life or a legal problem gets complicated, break it down into smaller manageable parts. Tackle one part at a time.
Practice random acts of kindness. Smile and laugh…it does the body and mind good. It “lightens” your world, your burdens and your day and of those around you.
 You will be more successful in life if you practice diplomacy, not defiance
No one really cares how much you know, until they know how much you really care.
Bundle of Rights: (ETPU)
Right to Exclude- not absolute; police can chase a criminal through your backyard; owner may grant the right to others to enter or cross their land (otherwise they are trespassing)
Right to transfer- owner may sell or gift etc.
Right to posses
Right to use- owner may use as he wishes as long as he complies with laws (not disturb others); as long as comply with other restrictions
NOTICE (4 types)
1. Actual notice
2. Record notice/constructive notice
-Burden is greater for owner of dominant estate is greater, but it can be recorded by either party
-When purchasing servient estate, buyer has duty to discover
3. Inquiry notice – if the purchaser has knowledge of conditions on the land or elsewhere sufficient to make a reasonable person suspect that an easement exists, he or she is charged with such notice as would have been gleaned from making an inquiry
4. Imputed notice – if have agent “purchasing” property for you, any actual, constructive or inquiry notice on behalf of the agent is imputed to the actual purchaser
Statue of Frauds (6)
must be in writing
identify grantor & grantee
contains words manifesting an intent to create an easement
describe the affected land or lands
must be signed by at least grantor; preferably grantee as well
must be dated
Estoppel (detrimental reliance)
Part performance (payments of enhancements to the property)
When forced to put in writing
Channeling function: allows parties to distinguish between multiple oral negotiations with the final written agreement
Cautionary function: parties understand it is an important agreement; formalized important transaction; formal signing
Evidentiary function: final signed document will serve as evidence in court of law as evidence of final agreement (four corners, no parole evidence)
Look to four corners, if Ambiguous then use rules of construction
fee title presumed: unless the grant indicates a transfer of lesser estate is intended by the parties
grants construed in favor of grantee
Where term “right of way” is used, usually indicates an easement
Policy discouraging separate ownership in stripe of land (Graves, Northwest realty)
Reserving: Retains for the grantor a newly created property right (creates new interest)
Excepting: retains for the grantor a pre-exiting interest described geographically or recognizes a previously existing property right in a third party (retains old interest)
“Stranger to deed” (outdated): a grantor may not create an exception or reservation in a third party;
Modern Law: specifies an exception or reservation may be in favor of third party
Categories of easements (5)
Express Easement- Arise when O agrees to burden his land (gives another a non possessory right on his land)
Easement implied from prior existing use- not written but O doesn’t object
Easement by necessity- Must be absolute necessity (i.e. Landlocked, no road access)
Prescriptive easement: adverse possession occurs when a party trespasses & O doesn’t object/exclude
Easement by Estoppel- Irrevocable license, detrimental Reliance
Affirmative Easement: Holder has right to do a particular act on S estate
In Gross
Negative Easement: D holder has right to prevent burdened possessor (S) from performing act’s they’d otherwise be able to do
Law of Covenants applies
Conservation Easement: Express, In gross, negative easement that restricts the use of the serviant estate.
Classification & Manner’s of Creation
Northwest Realty v. Jacobs
Factors To determine Fee Simple or Easement (7) “Can she do better with red tights)
Amount of consideration ( More=FSA, Less= esmt)
Specificity of description  ( More=FSA, Less= esmt)
Degree of limitation of use ( More=FSA, Less= esmt)
Best interest that serves intent of parties
Wording  (convey/bargin/sell=FSA Grant=Esmt)
Recipient & Tax payer (taxpayer= FSA)
Treatment of property by heirs/assignees
Greaves v. Mcgee
Factors to determine Fee simple or Right of way
Look to intent of the parties
Look to factual situation and circumstances existing at the time the instrument was created
Look to subsequent acts of the parties to determine the correct construction of easement
“strip of land” is too broad to indicate a fee simple was intended. It was not clear at the time to D where the road would pass through their land or whether it might later be moved
Hurst v. Baker
Interpretation & Extent
Brown v. Voss
Misuse of perpetual easement
Owner of Dominant estate can’t extend to other parcels
Misuse is considered trespass & may terminate
Can be renegotiated & repurchased for updated & new circumstance
Evolutionary growth allowed, not revolutionary growth (apply only when easement is silent on use)
MPM Builders v. Dwyer
If deed is silent on express prohibition against relocation then S estate is entitled to make reasonable changes in the location or dimensions of an easement, at the S owners own expense, to permit normal use or development of the S estate. But only if the changes do not:
Significantly lessen the utility of the easement
Increase the burdens on the owner of the easement in its use or enjoyment, or
Frustrate the purpose for which it was created
Hayes v. Aqua Marina
Increase in intensity of use Requirements (if easement does not limit the use)
Assume parties contemplated a normal increase in intensity of use
Arise from normal, reasonable & foreseeable development
No unreasonable, additional burden on S estate (consider noise, pollution etc.)
Changes must be of intensity, not of kind
Expansion/ Maintenance
D estate has duty to repair, must not unreasonably increase the burden on S estate
Minority ruleà can make improvements
S estate has duty to refrain from interfering with easement
May use property as you want as long as it doesn’t hinder use & enjoyment of easement
Appurtenant Easement
Nelson v. Johnson
Benefit auto runs unless terms change, S estate must have notice (actual/constructive)
Note: in more JRD: a successor who is not a purchaser for value is subject to the easement regardless of whether successor has notice.
If No D/S estates à In Gross
Burky v. Knowles
Deed doesn’t need words of inheritance to create an easement appurtenant
In Gross Easement- Note traditional View Can NEVER transfer
Crane v. Crane
easement in gross can be transferred by sale/descendent if easement is commercial in nature
silent on transfer & in gross commercial in nature ALWAYS assignable
Huggins v. Donovan
An easement in gross is transferable if parties intended to make it transferable (even if personal)
Moya Question Notes
Leased property from D estate owner
Any person in possession of the dominant land is entitles to use all appurtenant easements  to the land
A person adverly possessing dominant land can use the benefits of that land, public policy promotes utility & productivity, until person i

ent of a permanent encumbrance
– Usually arises when parties intended to create an easement but neglected written agreement
– Always appurtenant (bc for the use & benefit of a parcel)
– Permanency describes the object (not intent to use forever)
Easement by Necessity (Ward v. Slaveck)
1) Severance of title held in common to land ownership
2) Necessity at time of severance but no prior use (*Main)
            Minority: Strict necessity (TX) – Must be no other method of access
            Majority: Reasonable necessity (3rd rst)
– Right of way most common type
– Often occurs when large parcel severed, causing a parcel to become landlocked
– Most Cts justify by giving effect to intention of the parties
1) Conveyor intended to convey all rights necessary for enjoyment of the interest conveyed, or
2) Intended to retain all rights necessary for the enjoyment of any interest retained
– Strong policy à Cts find intent unless it appears parties intended a diff result (intent to convey ???)
– Promote productive use of land
– Grant rights reasonably essential to lands use
Factors for locating an Easement by Necessity
Distance, Injury to person on estate passage granted, Practicality, Benefit to D parcel,
 Prior conduct à Evidence if Intent & Necessity
Terminating an Easement by Necessity
Loss of purpose à Expires
            Necessity disappears à Rights terminate
General: Coextensive w/ present & future reasonable use of D estate
            New use permitted if
1) Result of reasonable development of D estate
2) w/out undue burden on S estate
            Problems concerning scope or extent may arise when changes in
1) Nature of use or
2) Activities
            Factors to balance necessity of use
                  1) Additional burdens on S estate caused by expanded use or
                        2) Burdens caused by restricting use of S estate
-Easement holder entitled only to a reasonable way (not to a particular location)
-Requiring S estate to leave the present way intact would interfere w/ ability to develop S estate in a reasonable manner
Distinguishing from Easements implied from prior existing use
– May be no prior use, Severance makes use necessary
A promise between parties concerning use of the land to either do or refrain from doing something
      – Covenants = promises
      – Actual notice not req’d t enforce recorded covenant against a subsequent purchaser
      – Covenants are predominant in our society dealing w/ both residential & commercial properties
      – Promises binding to ensure property value, community, etc
      – Commitment provides quality of life benefits
      – Beneficial (even though seemingly a burden)
      – Presumed valid
Distinguishing from Easements
      Covenant: To do or not to do something on land
      Easement: Right to Use
Policy: Landowners promise to refrain from specific conduct creates in the beneficiary of the promise an equitable interest in the land of the promisor