Hlsa property review
Download
1 / 58

HLSA Property Review - PowerPoint PPT Presentation


  • 122 Views
  • Uploaded on

Available at http://www.ProfessorBeyer.com. HLSA Property Review. Easements, Profits, Licenses Real Covenants & Equitable Servitudes April 23, 2009. Easements -- Introduction. Easements -- Generally. Limited use or enjoyment of another’s land. Easements -- Generally.

loader
I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.
capcha
Download Presentation

PowerPoint Slideshow about ' HLSA Property Review' - chogan


An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -
Presentation Transcript
Hlsa property review

Available at http://www.ProfessorBeyer.com

HLSA Property Review

Easements, Profits, LicensesReal Covenants & Equitable ServitudesApril 23, 2009



Easements generally
Easements -- Generally

  • Limited use or enjoyment of another’s land


Easements generally1
Easements -- Generally

  • Limited use or enjoyment of another’s land

  • Protected against interference by third parties


Easements generally2
Easements -- Generally

  • Limited use or enjoyment of another’s land

  • Protected against interference by third parties

  • Not revocable by landowner


Easements generally3
Easements -- Generally

  • Limited use or enjoyment of another’s land

  • Protected against interference by third parties

  • Not revocable by landowner

  • Not normal incident


Easements generally4
Easements -- Generally

  • 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 – Servient vs. Dominant


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 – Affirmative vs. Negative


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.

Easements – Appurtenant vs. in Gross


Profits prendre
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
Licenses

  • Use of land that is revocable by the servient tenant.

  • Often deemed too weak to be a true interest in land.


Express easements
Express Easements

Creation Methods

  • Grant


Express easements1
Express Easements

Creation Methods

  • Grant

  • Reservation to Grantor


Express easements2
Express Easements

Creation Methods

  • Grant

  • Reservation to Grantor

  • Exception to Grantor


Express easements3
Express Easements

Creation Methods

  • Grant

  • Reservation to Grantor

  • Exception to Grantor

  • Reservation to Third Party


Implied easements introduction
Implied Easements -- Introduction

  • Implied from circumstances (not in the deed)


Implied easements introduction1
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
Types of Implied Easements

  • By Necessity

  • By Prior Use (also called a quasi-easement)


Implied by necessity
Implied by Necessity

Owner of Rectangle conveys Oval to Grantee


Implied by prior use
Implied by Prior Use

Use must exist prior to severance.


Implied by prior use1
Implied by Prior Use

Factors Courts Examine

  • Prior use apparent or discoverable by reasonable inspection


Implied by prior use2
Implied by Prior Use

Factors Courts Examine

  • Prior use apparent or discoverable by reasonable inspection

  • Permanent or Continuous


Implied by prior use3
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 use4
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



Elements under texas law
Elements under Texas Law

  • Open & Notorious


Elements under texas law1
Elements under Texas Law

  • Open & Notorious

  • Adverse to Owner’s Claim of Right


Elements under texas law2
Elements under Texas Law

  • Open & Notorious

  • Adverse to Owner’s Claim of Right

  • Exclusive (minority approach)


Elements under texas law3
Elements under Texas Law

  • Open & Notorious

  • Adverse to Owner’s Claim of Right

  • Exclusive

  • Uninterrupted Use


Elements under texas law4
Elements under Texas Law

  • Open & Notorious

  • Adverse to Owner’s Claim of Right

  • Exclusive

  • Uninterrupted Use

  • Continuous (at least 10 years)



Express easements4
Express Easements

  • Terms of Easement

    Deed provisions control


Scope of express easements
Scope of Express Easements

  • Terms of Easement

  • Easement SilentRule of Reason – a balancing test:

    benefit to dominant tenant

    vs.

    burden on servient tenant


Scope of implied easements
Scope of Implied Easements

  • Circumstances from a reasonable perspective


Scope of prescriptive easements
Scope of Prescriptive Easements

  • Original adverse use becomes basis for applying the rule of reason.


Use of easement by servient tenant
Use of Easement by Servient Tenant

  • May use and enjoy but

  • May not interfere with dominant tenant’s use.


Use of easement by servient tenant1
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 tenant2
Use of Easement by Servient Tenant

  • Generally, servient tenant may not move the location of the easement.


Use of easement by servient tenant3
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
Transfer of Easements

  • Express Provision of Easement

  • Silent Easement

    • Burden

    • Benefit

      • Appurtenant

      • In Gross


Termination methods
Termination Methods

  • 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



Definition
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
Elements of Real Covenant

  • Enforceable Promises


Elements of real covenant1
Elements of Real Covenant

  • Enforceable Promises

  • Intent for Promise to Run with the Land


Elements of real covenant2
Elements of Real Covenant

  • Enforceable Promises

  • Intent for Promise to Run with the Land

  • Promise Must “Touch and Concern” the Land


Elements of real covenant3
Elements of Real Covenant

  • 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
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
Texas Elements of Equitable Servitudes

  • Successor to burdened land took its interest with notice of the restriction.


Texas elements of equitable servitudes1
Texas Elements of Equitable Servitudes

  • Successor to burdened land took its interest with notice of the restriction.

  • Covenant limits the use of the burdened land.


Texas elements of equitable servitudes2
Texas Elements of Equitable Servitudes

  • Successor to burdened land took its interest with notice of the restriction.

  • Covenant limits the use of the burdened land.

  • Covenant benefitstheland of the party seeking to enforce it.


Implied reciprocal equitable servitude
Implied Reciprocal Equitable Servitude

  • Lots in residential subdivision originally owned by common owner/developer.


Implied reciprocal equitable servitude1
Implied Reciprocal Equitable Servitude

  • Lots in residential subdivision originally owned by common owner/developer.

  • Owner/Developer imposed restrictions in deeds of most conveyed parcels.


Implied reciprocal equitable servitude2
Implied Reciprocal Equitable Servitude

  • 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
Construction of Covenants

  • Traditional Approach = strict construction(exactly as written)

  • Modern Approach = broad construction(includes similar unstated limits consistent with purpose)


Termination of covenants
Termination of Covenants

  • Express time stated in covenant

  • Statutory duration

  • Release

  • Merger

  • Estoppel, prescription, laches, etc.

  • Unclean hands

  • Acquiescence

  • Changed Conditions



ad