deed ◦ loosely translated as a “gift” ◦ necessary as a part of property transfer deed...

Deed◦ Loosely translated as a “gift”◦ Necessary as a part of property transfer

Deed Restrictions◦ Terms and conditions attached to the transfer of

property◦ Restricts use, future sale, potential improvements

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

Often attached to subdivisions Meant to enhance / preserve community &

amenities◦ Makes land more valuable◦ Reduces risk to future owners

Potential purchaser must agree to restrictions

Through proper title search, restrictions should never come as a surprise.

Come in two forms Personal Covenant

◦ Binding only between present grantor and grantee◦ Have nothing to do with use or enjoyment of property

Real Covenant◦ “Runs with the Land” or “Touch and Concern” the

property◦ Covenant and property are inseparable◦ Affects the use and enjoyment of property

Termination◦ Restrictions terminate only upon agreement by all

parties involved

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

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)

Ambiguity?◦ All doubts resolved in favor of free use of land

(similar to public regulation)

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

Private

Public

By Dedication

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

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

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)

Creation by Implication◦ By reservation◦ By grant◦ By way of necessity

Creation by Reservation or Grant◦ Requires prior existence and use of the easement

◦ Prior use must have been:

Apparent Permanent Continuous Necessary

for enjoyment of theproperty granted

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

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

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

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

Right and enjoyment of easement is granted to public or community

Can be created in three manners◦ By dedication◦ By prescription◦ By condemnation

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

Easement by Dedication◦ Common Law Dedication◦ Requires four elements

Person is competent to dedicate Public is served by dedication Dedication is actually offered to public Offer of dedication must be accepted

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

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

Easement by Condemnation◦ Public agency forcing private owner to grant

easement Must be for public purpose Cannot condemn more land than necessary Owner must be compensated Owner must be afforded due process

Termination of Public Easements◦ Abandonment

passive◦ Vacating a dedicated plat

active