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Deed
◦ Loosely translated as a “gift”
◦ Necessary as a part of property transfer
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Deed Restrictions
◦ Terms and conditions attached to the transfer of
property
◦ Restricts use, future sale, potential improvements
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Deed Restrictions are Considered a Contract
◦ Party imposing restrictions must own property
◦ Restrictions must be committed to paper and
recorded
◦ Recordation attaches restrictions to property
◦ Contract is between individuals, however composed
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Often attached to subdivisions
Meant to enhance / preserve community &
amenities
◦ Makes land more valuable
◦ Reduces risk to future owners
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Potential purchaser must agree to restrictions
Through proper title search, restrictions
should never come as a surprise.
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Come in two forms
Personal Covenant
◦ Binding only between present grantor and grantee
◦ Have nothing to do with use or enjoyment of property
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Real Covenant
◦ “Runs with the Land” or “Touch and Concern” the
property
◦ Covenant and property are inseparable
◦ Affects the use and enjoyment of property
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Termination
◦ Restrictions terminate only upon agreement by all
parties involved
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Covenants are enforceable only under certain
circumstances
◦ They are reasonable in nature
◦ They are not immoral or illegal
◦ They are not contrary to public policy
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Examples of unenforceable covenants
◦ Forbidding future sale based on race or religion
◦ Forbidding future sale based on age or family
status
◦ Government requiring restrictions in order to grant
approval of subdivision (in Houston – no zoning)
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Ambiguity?
◦ All doubts resolved in favor of free use of land
(similar to public regulation)
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A readily identifiable stick in a bundle of
property rights
Consistent with the segment theory of
property, easements assign rights to parties
for limited use or possession of land
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Private
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Public
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By Dedication
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In Gross
◦ An easement owned by an individual or corporation
◦ A personal right that cannot be assigned or
otherwise transferred
◦ Terminates on death of individual or dissolution of
corporation
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Appurtenant Easements
◦ Attaches to property rather than as a right to an
individual
◦ Requires two “estates” (dominant and servient)
 Dominant tenant has the right to use easement
 Servient tenant is burdened by the easement
◦ May be affirmative or negative
 Affirmative gives right to dominant tenant to use and
access easement
 Negative restricts servient tenant’s rights in favor of
the dominant tenant
A
B
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Appurtenant Easements are transferable
◦ Transfer of dominant tenement includes easement
across servient tenement
◦ Transfer of servient tenement includes the burden
of the easement
◦ What if dominant tenant purchases servient tenant’s
land?
 Easement terminates (cannot own property across
one’s own land)
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Creation by Implication
◦ By reservation
◦ By grant
◦ By way of necessity
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Creation by Reservation or Grant
◦ Requires prior existence and use of the easement
◦ Prior use must have been:
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Apparent
Permanent
Continuous
Necessary
for enjoyment of the
property granted
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By way of Necessity
◦ No prior existence or use is required
◦ Requirements:
 Must be unity in ownership of dominant and servient
estates at time of conveyance or some prior time
 Easement must be necessary to access and egress
property
 Necessity for easement existed at time of conveyance
A
B
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Easements by Estoppel
◦ An easement granted “in good faith” (i.e., not on
paper)
◦ The grantor of an easement can be “estopped” from
denying access to grantee if the easement was
granted in good faith
◦ Usually as a result of property purchase
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Easement by Prescription
◦ Works in a way similar to adverse possession
◦ While adverse possession ripens into title of land,
prescriptive rights mature into easement
◦ Five requirements
 Use must begin and continue without the actual or
implied permission of landowner (must be adverse to
owner of land)
 Use must be open and notorious
 Use must be exclusive
 Use must be in same place within definite lines
 Use must be continuous and interrupted
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Termination of Private Easements
◦ Transfer of servient estate without notice to
buyer
◦ Operation of Law (foreclosure, etc.)
◦ Abandonment
◦ Failure of Condition
◦ Merger
◦ Expiration of Designated Term
◦ Adverse Possession
◦ Expiration of Purposes
◦ Misuse
◦ Change of Condition
◦ Grant of Release
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Right and enjoyment of easement is granted
to public or community
Can be created in three manners
◦ By dedication
◦ By prescription
◦ By condemnation
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Easement by Dedication
◦ Transfer of interest in land in easement, but not in
title to land
◦ Voluntary transfer
◦ Statutory dedication
 Must be carried out in compliance with applicable
statutes
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Easement by Dedication
◦ Common Law Dedication
◦ Requires four elements
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Person is competent to dedicate
Public is served by dedication
Dedication is actually offered to public
Offer of dedication must be accepted
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Dedications may be expressed or implied
◦ Express dedication
 Declared written or orally
◦ Implied Dedication
 Declared by affirmative actions by owner
 Declared by inaction or acquiescence on owner’s part
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Easements by Prescription
◦ Similar to private creation (I.e., similar to adverse
possession)
◦ Two important caveats
 Public prescriptive easement must not be used strictly
for pleasure or recreation
 Use must be exclusive and not shared by the owner
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Easement by Condemnation
◦ Public agency forcing private owner to grant
easement
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Must be for public purpose
Cannot condemn more land than necessary
Owner must be compensated
Owner must be afforded due process
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Termination of Public Easements
◦ Abandonment
 passive
◦ Vacating a dedicated plat
 active