Charles J. Jacobus TEXAS REAL ESTATE LAW 11E. 2 Chapter 6 Fixtures and Easements Both involve rights...
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Charles J. Jacobus TEXAS REAL ESTATE LAW 11E. 2 Chapter 6 Fixtures and Easements Both involve rights that a third party may have in an owner’s real estate
2 Chapter 6 Fixtures and Easements Both involve rights that a
third party may have in an owners real estate. Fixtures involve the
rights that one may have in certain appliances or appurtenances to
ones real estate. Easements involve the rights of a one party to
the use of an access across another individuals real estate.
Slide 3
3 Fixtures The exact meaning of the term xture, as used in
every case, is difcult to dene. Case law defines a fixture as an
article or personalty that has been attached to the real estate so
that it becomes real estate. Statutorily, it has been determined
that goods are xtures when they become so related to particular
real estate that an interest in them arises.
Slide 4
4 Realty to Personalty Personalty to Realty Realty = Real
Estate Also called real property Conveyed by a deed Controlled by
real estate law Personalty = Personal Property Also called chattel
Conveyed by a bill of sale Controlled by UCC Whether an item is
real estate or personal property depends on: Nature of the article
Instrument used in conveyance Who is making the claim? Are there
liens or other security instruments?
Slide 5
5 Determination of a Fixture Three criteria are consistently
applied: Annexation - the manner in which the article is attached
to the real estate. Adaptation - the character of the article and
its adaptation to the property. Intention - what did the parties
intend when they signed the contract? Preference is given to the
question of intention! It is not a question of law but a question
of fact. Often created by the conduct of the parties. The intent
should be clearly expressed in the earnest money contract.
Slide 6
6 TREC One to Four Family Residential Contract (Resale)
Slide 7
7 Other Determinations Does the seller still have a claim
(i.e., seller financing)? Are there mechanics or materialmen
involved? Is there a mortgage lender(s)? Can the item be removed
without material injury? Are there other security interests
involved?
Slide 8
8 Security Interests When chattel is purchased on credit, the
seller of that item may protect his interest by recording a UCC
lien or chattel mortgage lien. The lender would prepare a
promissory note, a security agreement, and two nancing statements
commonly called UCC-1 forms. The seller would record his interest:
(1) in the real property records in the county clerks ofce in the
county of the purchasers residence, and (2) in the ofce of the
Secretary of State. When a UCC lien has been properly recorded, it
is considered to be perfected, and the public is legally on notice
of that vendors interest. Any subsequent purchaser is to search the
records for such liens.
Slide 9
9 When the collateral will be afxed to real estate, there are
additional provisions for ling the UCC liens. This type of lien is
termed a xture ling. A perfected security interest in xtures has a
priority over the conicting interest of an encumbrance or owner of
the real estate where the security interest is: 1. A purchase money
interest. 2. The xture ling is perfected before the interest of the
owner. 3. The xture is readily removable factory or ofce machines.
4. The lien is prior in time to any other conicting security
interest. Once perfected, a chattel mortgage is released by use of
a UCC-3 form. Security Interests
Slide 10
10 Trade Fixtures Articles annexed to the realty by the tenant
for his business for trade. The parties rights are usually set out
in a lease between the parties. The general rule is that trade
xtures are removable at the end of the lease, provided they can be
removed without material injury. Unless otherwise specied in the
contract, the xtures must be removed within a reasonable time after
the termination of the tenants occupancy. Reasonable time is a
question of fact for the jury to decide. If tenant fails to remove
the trade xtures within a reasonable time they will become the
property of the landlord.
Slide 11
11 Manufactured Housing There has been a rapid growth in Texas
in HUD manufactured housing (previously known as mobile homes). The
cost is approximately half that of a regularly constructed home. A
HUD-Code manufactured home is a structure: (1) constructed on or
after June 15, 1976; (2) transported in one or more sections,
which, in the traveling mode, is 8 body feet or more in width or 40
body feet or more in length or, when erected on site, it is 320 or
more square feet, and (3) is built on a permanent chassis and
designed to be used as a dwelling with or without a permanent
foundation when connected to the required utilities (plumbing,
HVAC, electrical).
Slide 12
12 This is not the same as industrialized housing.
Industrialized housing is constructed in one or more modules built
at a location other than the permanent residential site and
transported to the permanent residential site and are erected on a
permanent foundation. It does not include any residential structure
that is in excess of 3 stories or 49 feet in height. Apparently, if
the home can be moved in a single unit, it will be a HUD
manufactured home, but if it were built by components it would be
industrialized housing. In transacting the sale of any of the
foregoing units they are obviously sales of personal property and
certicates of title are issued as personal property. Manufactured
Housing
Slide 13
13 Real Property Issues Property Code says a manufactured home
is personal property if placed: 1. On a lot that is not titled in
the name of the consumer. 2. In a manufactured home rental
community. Texas Manufactured Housing Standards Act has established
standards. Texas established a supervisory state agency for
manufactured housing. This has enabled a tremendous amount of
affordable housing to be developed in Texas with controls on
quality. This may be the fastest growing area of new homeownership
in the state. Are these xtures? Good question. Probably not.
Slide 14
14 www.tdhca.state.tx.us/mh
Slide 15
15 Easements The right of one person to use the land of another
for a special purpose. Also known as incorporeal hereditaments.
Easement carries the right to reasonable use with as little burden
to the owner of that real estate as possible. Easement right
carries with it only a right to use, not ownership.
Slide 16
16 Appurtenant vs In Gross An easement appurtenant is created
for the benet of another tract of land. There must be two different
owners involved. The parcel the easement crosses is called the
servient estate. The parcel that uses the easement is called the
dominant estate. Runs with the land. An easement in gross benets
only the individual owner for his particular use. Holder often has
no right to sell, assign, or devise it. Normally terminates with
the dissolution of the entity that has the right. Often a
right-of-way or a utility easement. Generally in writing and agreed
to by all parties or acquired by eminent domain proceedings.
Slide 17
17 Appurtenant vs In Gross
Slide 18
18 Creation One of eight ways, four of which are in writing and
four of which are oral. Four that are required to be in writing
include easements by: (1) express grant; (2) express reservation;
(3) reference to a plat; and (4) statute. Four are created by
conduct of the parties and include easements by: (1) implication;
(2) prescription; (3) estoppel; and (4) necessity.
Slide 19
19 Easement by Express Grant Must be: in writing, properly
subscribed by the party to be charged, state the intent to grant
the easement, have an adequate legal description, acknowledged (if
it is to be recorded), and properly delivered. The simplest and
most direct method of creating an easement.
Slide 20
20 Easement by Express Reservation Created by express
reservation in a deed. Usually appurtenant and necessary for the
property being conveyed or for the real estate contiguous thereto.
Owner A may sell his property owner B but will reserve an easement
for access to the remainder of his property. Usually not an
exception to title, but rather a property right reserved in the
deed.
Slide 21
21 Easement by Reference to a Plat An easement can be created
by reference to an existing subdivision plat. It is quite common
for subdivision developers. Developers may create easements for
water mains, gas distribution lines, road rights-of-way, and other
types of easements.
Slide 22
22 Easement by Reference to a Statute Texas created an easement
under the Texas Open Beaches Act. Created a public right of use
over the beaches from the mean low tide to the line of vegetation
bordering on the Gulf of Mexico. If there is no marked vegetation
line, the easement may vary but cannot extend farther than 200 feet
from the seaward line of mean low tide. Prohibits homeowners from
rebuilding when the line is forced inland. It has also been held
that the publics right arises from custom because of the publics
right to use these beaches over hundreds of years.
Slide 23
23 Texas Supreme Court noted that Galvestons west beach had
been privately owned since the Republic of Texas. The Court went
on, then, to describe two beaches that exist: 1) the wet beach
which is under tidally influenced water; and 2) the dry beach
between mean high tide and the vegetation line. The state of Texas
owns the wet beach area, and the private landowner owns the dry
beach area. The owner can lose his right to occupy the dry beach
area if the land is slowly and imperceptibly eroded away. If the
land is torn away because of a hurricane, flood, or other act of
nature, the owner is allowed to reclaim. Texas Open Beaches
Act
Slide 24
24 Texas Department of Transportation Texas Open Beaches
Act
Slide 25
25 Entry to Galveston Bay at Port Bolivar
Slide 26
26 Terminus of the Waterway in Brownsville
Slide 27
27 TREC has a promulgated form!
Slide 28
28 (a) Any county attorney, district attorney, or criminal
district attorney, or the attorney general at the request of the
commissioner, shall file in a district court of Travis County, or
in the county in which the property is located, a suit to obtain
either a temporary or permanent court order or injunction, either
prohibitory or mandatory, to remove or prevent any improvement,
maintenance, obstruction, barrier, or other encroachment on a
public beach. Open Beaches Act, Chapter 61, Natural Resources Code
www.capitol.state.tx.us
Slide 29
29 Ownership moves with the vegetation line! Beach Vegetation
Line Gulf of Mexico
Slide 30
30 Easement by Implication Imposed by a court to provide access
to a landlocked parcel. Certain criteria must be met to justify the
courts intervention: 1. The prior use of the easement must be
apparent and obvious. 2. The prior use must also have been
reasonably continuous. 3. The use of that easement must be
reasonably necessary. 4. There must have originally been a unity of
ownership. Two owners have an oral agreement where one has granted
the easement to anothers landlocked parcel that was originally
owned by the grantor. When the oral agreement is breached, the
aggrieved party sues.
Slide 31
31 Easement by Prescription Has been obtained by a claimant
against the wishes of the landowner. Think of it as obtaining an
easement by adverse possession. Generally imposed by a court, as in
an easement by implication. The requirements for an easement by
prescription are as follows: 1. Use must be adverse, open,
notorious, and hostile. 2. Use must be exclusive to the claimant
and not to the public. 3. Use must be uninterrupted &
continuous for at least 10 years.
Slide 32
32 Easement by Estoppel A party, by oral agreement, has granted
an easement which the other party has relied on and has expended
money that would be lost if the easement is revoked. The only
requirements for creating an easement by estoppel are that: 1. The
representation must have been communicated to the promisee. 2. The
representation must have been believed by that promisee. 3. There
must have been a reliance to the detriment of the promisee. It is
imposed by equity because of the bad faith of promisor and then
attempting to take it back after the promisee has relied on his
promise.
Slide 33
33 Easement by Necessity There has often been confusion between
easements by implication and easements by necessity. In order for
an easement by necessity to exist, it must be shown that: 1. There
was a unity of ownership with the dominant and servient estates. 2.
The roadway is a necessity, not a mere convenience. 3. The
necessity existed at the time of the severance of the two estates.
No one can have an easement by necessity over the land of a
stranger. There must be some conduct between the dominant and
servient estates. Being landlocked, by itself, does not create the
necessity. Must be a strict necessity, providing the only access.
No requirement that the easement be apparent or continuously used.
A temporary right that ceases when the necessity terminates.
Slide 34
34 Termination The methods of terminating an easement are:
release, merger, failure of purpose, and abandonment.
Slide 35
35 Release An easement can be released by express agreement of
the parties. The same care in drawing the instrument for creating
the easement should also be taken in the termination of that
easement. There may be rights created that could be overlooked when
the release is drawn, and such oversight may inadvertently create a
cloud on the title.
Slide 36
36 Merger When the owner of the dominant estate purchases the
servient estate or vice versa and therefore owns fee simple title
to the entire property and no longer has any use for the
easement.
Slide 37
37 Failure of Purpose If an easement is created for a
particular purpose, it is within this purpose that guidelines are
established for reasonable use. When the purpose for an easement
fails, so does the easement. An illustration of this would be a
right of way that was created to cross property solely for train
trafc when the trains are permanently re-routed.
Slide 38
38 Abandonment Abandonment is difcult to prove and not an easy
method of termination. There must be proof of an intent of the
party using the easement to abandon that easement. This must be
proved by the person attempting to terminate the easement. Must be
established by clear and satisfactory evidence. Mere nonuse, by
itself, does not constitute abandonment.
Slide 39
39 www.recenter.tamu.edu
Slide 40
40 Questions for Discussion 1. What is a fixture and what are
the three tests of a fixture? 2. What is a trade fixture? 3. Define
an easement and explain the difference between an easement
appurtenant and an easement in gross. 4. Explain the difference
between the dominant and servient parcels in an easement
appurtenant. 5. How may easements be created and terminated?