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HLSA Property Review
Easements, Profits, Licenses
Real Covenants & Equitable Servitudes
April 23, 2009
Easements -- Introduction
Easements -- Generally
1.
Limited use or enjoyment of another’s
land
Easements -- Generally
1.
2.
Limited use or enjoyment of another’s
land
Protected against interference by third
parties
Easements -- Generally
1.
2.
3.
Limited use or enjoyment of another’s
land
Protected against interference by third
parties
Not revocable by landowner
Easements -- Generally
1.
2.
3.
4.
Limited use or enjoyment of another’s
land
Protected against interference by third
parties
Not revocable by landowner
Not normal incident
Easements -- Generally
1.
2.
3.
4.
5.
Limited use or enjoyment of another’s
land
Protected against interference by third
parties
Not revocable by landowner
Not normal incident
May be created by conveyance
Easements – Servient vs.
Dominant
Servient Tenement


Land burdened by
the easement
Land which “suffers”
because of the
easement
Dominant Tenement


Land benefited by
the easement
Land which is made
“more valuable”
because of the
easement
Easements – Affirmative
vs. Negative
Affirmative

Easement holder
may do something
on the servient
tenement.
Negative

Easement holder may
prevent something
from being done on
the servient
tenement.
Easements – Appurtenant
vs. in Gross
Appurtenant


Dominant tenant
owns land benefited
by the easement.
Easement benefits
land.
In Gross


No benefited land.
Easement benefits a
person, the dominant
tenant.
Profits à Prendre



Dominant tenant also has right to remove
a portion of the servient land or its
products.
Examples: soil, timber, crops, minerals
Modern Law: treated under the same
rules as easements.
Licenses


Use of land that is revocable by the
servient tenant.
Often deemed too weak to be a true
interest in land.
Express Easements
Creation Methods

Grant
Express Easements
Creation Methods


Grant
Reservation to Grantor
Express Easements
Creation Methods



Grant
Reservation to Grantor
Exception to Grantor
Express Easements
Creation Methods




Grant
Reservation to Grantor
Exception to Grantor
Reservation to Third Party
Implied Easements -Introduction

Implied from circumstances (not in the
deed)
Implied Easements -Introduction


Implied from circumstances (not in the
deed)
Severance of commonly-owned parcels
required:


Deed conveys some, but not all, of
grantor’s land, or
Deed conveys grantor’s land to different
grantees
Types of Implied
Easements

By Necessity

By Prior Use (also
called a quasi-easement)
Implied by Necessity
Owner of Rectangle conveys Oval to Grantee
Implied by Prior Use
Use must exist prior to severance.
Implied by Prior Use

Factors Courts Examine
Prior use apparent or discoverable by
reasonable inspection
Implied by Prior Use


Factors Courts Examine
Prior use apparent or discoverable by
reasonable inspection
Permanent or Continuous
Implied by Prior Use



Factors Courts Examine
Prior use apparent or discoverable by
reasonable inspection
Permanent or Continuous
Necessary and Beneficial
Note difference between implied grant
and implied reservation.
Implied by Prior Use



Factors Courts Examine
Prior use apparent or discoverable by
reasonable inspection
Permanent or Continuous
Necessary and Beneficial
Note difference between implied grant
and implied reservation.

Other Factors
Prescriptive Easements
Elements under Texas Law
1.
Open & Notorious
Elements under Texas Law
1.
2.
Open & Notorious
Adverse to Owner’s Claim of
Right
Elements under Texas Law
1.
2.
3.
Open & Notorious
Adverse to Owner’s Claim of
Right
Exclusive (minority approach)
Elements under Texas Law
1.
2.
3.
4.
Open & Notorious
Adverse to Owner’s Claim of
Right
Exclusive
Uninterrupted Use
Elements under Texas Law
1.
2.
3.
4.
5.
Open & Notorious
Adverse to Owner’s Claim of
Right
Exclusive
Uninterrupted Use
Continuous (at least 10 years)
Scope and Transferability
of Easements
Express Easements
1.
Terms of Easement
Deed provisions control
Scope of Express
Easements
1.
2.
Terms of Easement
Easement Silent
Rule of Reason – a balancing test:
benefit to dominant tenant
vs.
burden on servient tenant
Scope of Implied
Easements

Circumstances from a reasonable
perspective
Scope of Prescriptive
Easements

Original adverse use becomes basis for
applying the rule of reason.
Use of Easement by
Servient Tenant


May use and enjoy but
May not interfere with dominant
tenant’s use.
Use of Easement by
Servient Tenant


May grant overlapping easements but
New easements cannot unreasonably
interfere with original easement.
[Note that original easement may be
made exclusive].
Use of Easement by
Servient Tenant

Generally, servient tenant may not
move the location of the easement.
Use of Easement by
Servient Tenant


If dominant tenant wants easement
maintained, dominant tenant must
perform the maintenance.
Covenants to repair, however, may be
coupled with an easement.
Transfer of Easements

Express Provision of Easement

Silent Easement


Burden
Benefit


Appurtenant
In Gross
Termination Methods
1.
2.
3.
4.
5.
6.
7.
8.
9.
Natural Duration
Merger
Release
Abandonment by Dominant Tenant
Estoppel
Forfeiture
Not Mere Non-use
Prescription/Adverse Use
Sale of Servient Tenement of a Prescriptive
or Implied by Prior Use Easement
Real Covenants
Definition
Promise which is enforceable not only
between the original parties, but also
between successors of either party
solely because they are now the new
owners of the land.
Elements of Real Covenant
1.
Enforceable Promises
Elements of Real Covenant
1.
2.
Enforceable Promises
Intent for Promise to Run with
the Land
Elements of Real Covenant
1.
2.
3.
Enforceable Promises
Intent for Promise to Run with
the Land
Promise Must “Touch and
Concern” the Land
Elements of Real Covenant
1.
2.
3.
4.
Enforceable Promises
Intent for Promise to Run with
the Land
Promise Must “Touch and
Concern” the Land
Privity between original parties



Mutual
Horizontal
No privity of estate needed
Equitable Servitudes -Generally


A covenant enforced as running with the
land in a court of equity even though it
does not meet all the requirements of a
real covenant.
Key issue = which requirements may be
lacking?
Texas Elements of
Equitable Servitudes
1.
Successor to burdened land took its
interest with notice of the restriction.
Texas Elements of
Equitable Servitudes
1.
2.
Successor to burdened land took its
interest with notice of the restriction.
Covenant limits the use of the
burdened land.
Texas Elements of
Equitable Servitudes
1.
2.
3.
Successor to burdened land took its
interest with notice of the restriction.
Covenant limits the use of the
burdened land.
Covenant benefits the land of the
party seeking to enforce it.
Implied Reciprocal
Equitable Servitude
1.
Lots in residential subdivision
originally owned by common
owner/developer.
Implied Reciprocal
Equitable Servitude
1.
2.
Lots in residential subdivision
originally owned by common
owner/developer.
Owner/Developer imposed restrictions
in deeds of most conveyed parcels.
Implied Reciprocal
Equitable Servitude
1.
2.
3.
Lots in residential subdivision originally
owned by common owner/developer.
Owner/Developer imposed restrictions in
deeds of most conveyed parcels.
Developer imposes general plan upon
subdivision (uniform restrictions on most
deeds, recorded declaration, etc.)
Construction of Covenants


Traditional Approach = strict construction
(exactly as written)
Modern Approach = broad construction
(includes similar unstated limits
consistent with purpose)
Termination of Covenants
1.
2.
3.
4.
5.
6.
7.
8.
Express time stated in covenant
Statutory duration
Release
Merger
Estoppel, prescription, laches, etc.
Unclean hands
Acquiescence
Changed Conditions
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