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