Easements and Deed Restrictions

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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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Easements

• 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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Easements

• 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 tenants rights in
  favor of the dominant tenant

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Private Easements
A
B
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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
  tenants land?
• Easement terminates (cannot own property across
  ones 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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A
B
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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 owners
  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