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Easements and Deed Restrictions. Deed Restrictions. 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.

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Easements and Deed Restrictions

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Easements and deed restrictions l.jpg

Easements and Deed Restrictions

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Deed Restrictions

  • 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

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Deed Restrictions

  • 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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Deed Restrictions

  • 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.

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Deed Restrictions

  • 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

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Restrictive Covenants

  • 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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Restrictive Covenants

  • 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)

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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

  • Public

  • By Dedication

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Private Easements

  • 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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Private Easements

  • 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

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Private Easements



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Private Easements

  • 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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Private Easements

  • Creation by Implication

    • By reservation

    • By grant

    • By way of necessity

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Private Easement

  • 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 the

property granted

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Private Easements

  • 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

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Private Easements

  • 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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Private Easements

  • 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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Private Easements

  • 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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Public Easements

  • 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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Public Easements

  • 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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Public Easements

  • 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

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Public Easements

  • 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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Public Easements

  • 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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Public Easements

  • 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

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Public Easements

  • Termination of Public Easements

    • Abandonment

      • passive

    • Vacating a dedicated plat

      • active

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