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Property II
South Texas College of Law Houston
Terrell, Buford

PROPERTY II
How to Attack PII Exam
 
I.              Non-Possessory Interests
 
Is there a possessory interest or non-possessory interest?
Possessory – owner has present right to possession.
Non-possessory – person has interest in the land in the possession of another.
 
If the interest is non-possessory, is it:
an easement
a licence,
a profit, or
a covenant,
 
Is the interest in land an easement?
Easements
An easement is a non-possessory interest in land that entitles the owner of the easement to a limited use or enjoyment of land in the possession of another.
 
Is the easement affirmative or negative?
a.    Affirmative easements – An affirmative easement is one that allows the owner (benefited estate or dominant estate) to enter and do certain acts on the land of another (burdened estate or servient estate). The actions that the owner of the easement is allowed to do are limited by the interest that he holds.
b.    Negative easements – A negative easement allows the holder of the easement to compel the owner of the land affected by the interest (the servient estate) not to do certain things with his land he could normally do. (very rare).
 
Is the easement appurtenant or in gross?
c.    Easements appurtenant – An appurtenant easement is one that attaches to and benefits another parcel of land. There must be a servient estate and a dominant estate. The ea

was attached was transferred. Now, an easement appurtenant is attached to the dominant estate and passes with the tenement to any subsequent owner of the tenement.  
Ex. Whiteacre is located between Blackacre and a public road. O, owner of Whiteacre, coveys to A, owner of Blackacre, a right to cross Whiteacre to reach the public road. The easement over Whiteacre is appurtenant to Blackacre (the dominant estate)
d.    Easements in gross – An easement in gross benefits the owner personally but does not benefit any of the land of which he is the owner. At common law, the easement in gross could not be transferred; today, the law allows the transfer of easements that are granted for commercial use. 
Ex. O, owner of Greenacre, grants to Heylook billboard, the right to erect a sign on Greenacre. Heylook owns no land. The easement is in gross and can be assigned by Heylook if the parties so intend. If
O sells Greenacre to A, the burden of the easement passes with ownership to A.
 
Appurtenant Favored – If an instrument in creating an easement is ambiguous, courts generally construe it as creating an easement appurtenant to land rather than in gross. (Burckey)
 
How was the easement created?