HANDLING COMMON AND NOT SO COMMON EASEMENTS · 2017-04-18 · An easement in gross runs only to the grantee. It is not an easement for the purpose of gaining access to a dominant

2012 TEXAS LAND TITLE INSTITUTE - HANDLING COMMON AND NOT SO COMMON EASEMENTS

HANDLING COMMON AND NOT SO COMMON EASEMENTS

Texas Land Title Institute December, 2012

Bruce L. Goldston Vice President and Regional Counsel

WFG National Title Insurance Company 613 NW Loop 410, Suite 150 San Antonio, Texas 78216

(877) 366-8781 [email protected]

2012 TEXAS LAND TITLE INSTITUTE HANDLING COMMON AND NOT SO COMMON EASEMENTS

BRUCE L. GOLDSTON

Vice President and Regional Counsel South Central Region

WFG National Title Insurance Company 613 NW Loop 410, Suite 150 San Antonio, Texas 78216

(877) 366-8781 - (210) 366-8781 - (210) 444-9473 (FAX)

Professional:

Mr. Goldston was in private practice for 15 years, where he concentrated on real estate, probate and commercial matters. He subsequently handled commercial and real estate litigation for the Federal Deposit Insurance Corporation for 3 years. In 1996 he joined Alamo Title Insurance as Claims Counsel where he supervised the administration and resolution of all claims which arose from policies issued by Alamo Title in Texas and New Mexico. In July, 1998, he became Underwriting Counsel for Fidelity National and Alamo Title, and in 2009 he was named by Fidelity as State Counsel for Texas and Oklahoma. He joined WFG National Title Insurance Company as Vice President and Regional Counsel of the South Central Region in March, 2010, where he manages underwriting and educational activities.

Education:

Austin College

Sherman, Texas BA 1972 St. Mary’s University School of Law

San Antonio, Texas JD 1975

Training/Speaking Experience:

Mr. Goldston has spoken over 250 times on title insurance, underwriting, claims and legal issues. Some of the topics he has covered include:

Introduction to Title Insurance Manufactured Housing Avoiding and Administering Claims Examiners’ Training Current Underwriting Issues Insuring Around Home Equity Lending Insuring Construction Transactions Legislative Updates Probate and Intestate Succession Bankruptcy Ethics for Title Company Employees Reverse Mortgages Voluntary and Involuntary Liens Taxes and Title Insurance Escrow and Indemnity Agreements Marital Rights Business Entities Foreclosures Homesteads Minerals and Title Insurance Title Policy Endorsements Regulatory Issues

mailto:[email protected]

Table of Contents

I. WHAT IS AN EASEMENT? ................................................................................................................ 1

II. WHAT ARE THE ESTATES? ............................................................................................................... 1

III. THE TYPES OF ACCESS EASEMENTS ................................................................................................. 1

IV. WHICH EASEMENTS DO WE INSURE? ............................................................................................. 2

V. INSURING THE EXPRESS EASEMENT ............................................................................................... 2

VI. WHO CAN GRANT AN EXPRESS EASEMENT? ................................................................................... 2

VII. APPURTENANT EASEMENTS ........................................................................................................... 2

VIII. OVERBURDENING AN EASEMENT .................................................................................................. 3

IX. THE NEGATIVE EASEMENT .............................................................................................................. 3

X. EASEMENTS IN GROSS .................................................................................................................... 3

XI. AVIGATION EASEMENTS ................................................................................................................. 4

XII. FLOWAGE EASEMENTS ................................................................................................................... 5

XIII. VISIBILITY EASEMENTS .................................................................................................................. 5

XIV. AIR SPACE EASEMENTS .................................................................................................................. 5

XV. EASEMENTS ON VLB TRACTS .......................................................................................................... 5

XVI. PIPELINE AND BLANKET EASEMENTS ............................................................................................. 5

XVII. RECIPROCAL EASEMENTS .............................................................................................................. 6

XVIII. SOLAR ACCESS EASEMENTS ......................................................................................................... 6

XIX. CONSTRUCTION EASEMENTS ....................................................................................................... 6

XX. SUBTERRANEAL TUNNEL EASEMENT ............................................................................................ 7

XXI. WIND EASEMENTS ....................................................................................................................... 7

XXII. IMPLIED RECIPROCAL NEGATIVE EASEMENTS ............................................................................. 7

2012 TEXAS LAND TITLE INSTITUTE – HANDLING COMMON AND NOT SO COMMON EASEMENTS Page 1

HANDLING COMMON AND NOT SO COMMON EASEMENTS

2012 TEXAS LAND TITLE INSTITUTE

Bruce L. Goldston WFG National Title Insurance Company

San Antonio, Texas THE GROUND RULES I. WHAT IS AN EASEMENT? An easement is a non-possessory interest in the property of another that authorizes the holder to use that property for a particular purpose. Marcus Cable Associates, L.P. v. Krohn, 90 SW3d 697, 700 (Tex. 2002); Stephen F. Austin State Univ. v. Flynn, 228 SW3d 353, 358 (Tex. 2007). An easement is an interest a landowner has in the property of another landowner. A “grant of easement” conveys an unlimited (but reasonable) use. “A grant or reservation of an easement in general terms implies a grant of unlimited reasonable use such as is reasonably necessary and convenient and as little burdensome as possible to the servient owner.” Coleman v. Forister, 514 SW2d 899, 903 (Tex. 1974). But, easements are usually limited by their terms to location, duration, and/or use. For this reason, when we are insuring an easement on Schedule A, we except to the terms and conditions of the easement on Schedule B. II. WHAT ARE THE ESTATES? There must be a dominant and a servient estate. Drye v. Eagle Rock Ranch, Inc., 364 SW2d 196, 207 (Tex. 1962). If the dominant and servient estates ever merge into common ownership, the easement is erased. III. THE TYPES OF ACCESS EASEMENTS Express easement. Implied easement. Easement of necessity Easement by estoppel. Prescriptive easement.


IV. WHICH EASEMENTS DO WE INSURE? You should check with your underwriter, but prudence and sound judgment tells us that only the express easement is insurable. The other types of easements are not insurable until they have been established by a final judgment entered by a court of competent jurisdiction. V. INSURING THE EXPRESS EASEMENT. Examining an easement Is the easement granted by all owners of the servient estate? This requires an exam of the title to the servient tract just as you would in a sale transaction. Are there liens or clouds on the servient estate which will be superior to the easement grant? Ad valorem taxes which accrued during or prior to the calendar year in which the easement was granted are superior to the interest of the dominant estate in the easement. A tax suit sale for those taxes will wipe out the easement. Ad valorem taxes which accrued after the calendar year in which the easement was granted are inferior to the interest of the dominant estate in the easement. Does the easement abut a public road at one point and terminate in the dominant estate at the other? VI. WHO CAN GRANT AN EXPRESS EASEMENT? The easement must be granted by all the owners of the servient estate. One cotenant acting alone may not grant an easement, because that prejudices the rights of the other cotenant. Barstow v. State, 742 SW2d 495 (Tex.App.-Austin 1987, writ den.); Chenowith Bros. v. Magnolia Petroleum Co., 129 SW2d 446 (Tex. Civ. App. 1939, writ dism’d judgmt cor.); Elliott v. Elliott, 597 SW2d 446 (Tex .Civ. App. –Corpus Christi, 1980); Lee v. Phillips Petroleum Company, 329 FSupp 579, 582 (USDC SD Tex. 1971). A co tenancy is formed when 2 or more persons share the unity of exclusive use and possession in property held in common. The present right to possession of the property is essential because someone who is not entitled to possession of property held in common is not a cotenant. Laster v. First Huntsville Properties Company, 826 SW2d 125, 129 (Tex. 1991). VII. APPURTENANT EASEMENTS


An easement appurtenant runs with the land. An easement that runs with the land is an easement appurtenant. Once an easement appurtenant has been created of record, a conveyance of the dominant estate carries with it the easement, even if the deed does not mention the easement. The easement runs with the title to the dominant estate whether referenced or not in the conveyance. Graham v. Kuzmich, 876 SW2d 446, 448 (Tex.App. – Corpus Christi 1994, no writ). Such an easement is most commonly created by adding the phrase “… his heirs, successors, and assigns …” after the name of the grantee in the conveyance. VIII. OVERBURDENDING AN EASEMENT When you are being asked to insure an easement for the benefit of a tract which was not the original dominant tract, be sure that the extending of the easement to the tract does not constitute a use beyond what the parties to the original easement intended. Holstrom v. Lee, 26 SW3d 526 (Tex.App. - Austin, 2000) no pet. “It is well established that an easement cannot be used to pass onto another parcel of land; it can only be used to serve the land to which it is appurtenant.” Bickler v. Bickler, 403 SW SW2d 354, 359 (Tex. 1966). A grantee of an easement cannot use it to benefit other land owned by him. Id., p. 553. IX. THE NEGATIVE EASEMENT The grantor of a negative easement agrees to not make some use of his property that he would otherwise be entitled to do. How is a negative easement different from a restriction? The effect of each might very well be the same. In order to place a restriction on property, the person placing the restriction must be in title or must have the contractual right to impose restrictions. A negative easement is also placed on title by the property owner; it is a promise to not do something with property. Negative easements are not common in residential areas where these issues are covered by restrictions and covenants. X. EASEMENTS IN GROSS An easement in gross runs only to the grantee. It is not an easement for the purpose of gaining access to a dominant estate; that is an easement appurtenant. If an easement extends to a landowner’s successors in interest, the easement is appurtenant. Shipp v. Stoker, 923 SW2d 100, 103 (Tex.App. --Texarkana 1996). An easement in gross is personal and attaches only to the grantee. Id. An easement is never presumed to be in gross when it can be fairly construed to be appurtenant. Id. “The easement ... is an easement in gross, as opposed to an easement appurtenant, because it is not created to benefit nor does it benefit the possessor of any tract of land in his use of it as such possessor.” Orange County, Inc. V. Citgo, 934 SW2d 472, 476 (Tex.App.--Beaumont 1996). Under this rule, an easement granted to A to allow A to cross over B’Ss land to access A’s land is an easement appurtenant. The right of entrance to and exit from an estate is generally an appurtenant easement. 917 SW2d 106, 110; Kruegel v. Nitschmann, 40 SW 68, 69 (1897, ref’d).


An easement in gross is similar to a license or a permit. It benefits the individual, not the land. Our challenge is that we are limited to insuring interests in real property. An easement in gross is a personal right that is generally not alienable. XI. AVIGATION EASEMENTS Typical language for these easements is as follows:

For the use and benefit of the public, the easement and continuing right to fly, or cause or permit the flight by any and all persons or aircraft, of the class, size and category as is now or hereinafter may be operationally compatible with the airport, in, through, across or about any portion of the Airspace hereinabove described. The easement and right to cause or create, or permit or allow to be caused or created within the Airspace, such noise, dust, turbulence, vibration, illumination, air currents, fumes, exhaust, smoke and all other effects as may be inherent in the proper operation of aircraft, now known or hereafter used for navigation of or flight in air.

Noise abatement programs. For properties in the flight path at airports the city will perform noise abatement improvements in exchange for the homeowner granting an avigation easement to the city. The state can acquire avigation easements by prescription. Pacific Gas & Electric Co. v. Peterson, 270 Cal.App.2d 434 (Cal. App. 1969). No consideration or payment is necessary. 49 USC 40103

§40103. Sovereignty and use of airspace

(a) Sovereignty and Public Right of Transit.—(1) The United States Government has exclusive sovereignty of airspace of the United States. (2) A citizen of the United States has a public right of transit through the navigable airspace. To further that right, the Secretary of Transportation shall consult with the Architectural and Transportation Barriers Compliance Board established under section 502 of the Rehabilitation Act of 1973 (29 U.S.C. 792) before prescribing a regulation or issuing an order or procedure that will have a significant impact on the accessibility of commercial airports or commercial air transportation for handicapped individuals. (b) Use of Airspace.—(1) The Administrator of the Federal Aviation Administration shall develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. The Administrator may modify or revoke an assignment when required in the public interest

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1101.)


XII. FLOWAGE EASEMENTS These are also known as flood easements or inundation easements. This easement gives the dominant estate holder the right to flood or submerge land of the servient tenement. When the public plans to dam a river and create a lake, the public must (1) condemn and pay for the title to the land to be flooded, or (2) impose a flowage easement. If all use will be permanently lost, condemnation is the vehicle used. However, If the water line recedes in a historically unforeseeable fashion, exposing land which had been submerged for many years, the landowner who retained title but merely gave a flowage easement to the public can re-enter and take the land. For example, see the conditions existing at Falcon Lake and Medina Lake. Flowage easements are sometimes used as a type of conservation easement. A landowner might grant a flowage easement to the public so as to preserve low lying wetlands for the benefit of migratory birds. This is a type of negative easement. XIII. VISIBILITY EASEMENTS These are also known as view easements or sight line easements. This type of easement in generally imposed by a developer (1) for public safety purposes at intersections or to (2) preserve the right of a property owner to have an aesthetic view, such as of a lake or beachfront. They are negative easements. XIV. AIR SPACE EASEMENTS The air over your land is not real property but the air space is. For example the landowner grants to the public the right to construct a highway ramp over his property. So called overhang easements and common aerial utility easements are also examples of air space easements. XV. EASEMENTS ON VLB TRACTS Any easement across land which is being purchased from the VLB under a contract for deed is not effective unless the VLB expressly joins in the easement. The only permissible easement purposes are (1) utility easement; (2) right of way to private or public parties, or (3) flowage easements. If consideration for the easement is paid, the consideration must be sent to the VLB and the VLB will decide how much, if any of the consideration is to be refunded to the contract purchaser. XVI. PIPELINE AND BLANKET EASEMENTS Most of the older pipeline easements were blanket easements; they covered large areas of land leaving the pipeline company great flexibility as to where to ultimately place the pipeline. Many of these easements contained provisions which limited the width of the easement once


the original pipeline was laid. Some of them allowed the laying of new or additional pipelines within that established width, even up to 20 or more years later. Wood v. Coastal States Crude Gathering Company, 482 SW2d 954 (Tex.Civ.App. – Corpus Christ 1972, writ ref’d n.r.e.); Strauch v. Coastal States Crude Gathering Company, 424 SW2d 667 (Tex.Civ.App- Corpus Christi 1968, writ dism’d). [See Paul McConnell’s paper from the 2010 TLTA Institute.] When confronted with such an easement document, it is crucial to be able to find the precise location of the existing pipeline. When a surveyor states that the subject tract is not affected by the pipeline, it is prudent to require him to demonstrate the exact location of the pipeline. In the opinion of most underwriters, merely stating “no pipeline was found” is not sufficient to remove a blanket pipeline easement from Schedule B. http://gis2.rrc.state.ux.us/public/startit.htm XVII. RECIPROCAL EASEMENTS “These easements are generally for parking, access, common utilities. The easement should provide all parties with reciprocal rights. Each party should have the right to access the other party’s property for vehicular parking and access and for pedestrian access. For instance, the customers and employees of a major retailer’s property will need to park anywhere they want within the shopping center (subject to an agreement by the parties to provide special areas for employee parking) and to walk anywhere they want within the shopping center. To customers of the occupants of the shopping center, the property will appear to be owned by one party and operated as a fully integrated shopping center (even though the property is owned by two or more different parties). Each party may also need to “tie into” the other parties’ utility systems, which most often occurs when the major retailer “ties into” the developer’s utility systems for the shopping center. Also, the parties may need certain encroachment rights if their canopies or foundations minimally encroach upon the other party’s property. All of the foregoing rights would take the form of “easements” and would have to be set forth in detail in the easement document. These “easements” would effectively allow one party to use (on a non-exclusive basis) the property of the other party.” See: http://www.coxcastle.com/publications/article.cfm?id=20 XVIII. SOLAR ACCESS EASEMENTS These are most commonly used to insure access to sunlight for solar panel arrays. This is a negative easement, but it could also be a restriction. The closer the servient tract is to the panels, the more restrictive the easement. XIX. CONSTRUCTION EASEMENTS Here, an easement is reserved or imposed on private property which allows for access to a construction project, and allows for the storage of equipment and materials during construction. The problem most often presented is that these easements usually don’t have a

http://gis2.rrc.state.ux.us/public/startit.htm

http://www.coxcastle.com/publications/article.cfm?id=20


termination date, other than “when construction is complete.” Whether to remove this type of easement from a commitment is a judgment call on a case by case basis. XX. SUBTERRANEAN TUNNEL EASEMENT Remember that a landowner owns the surface and the air space and the subsurface. The public has no right to tunnel beneath private property except for an easement or by condemnation. If a third party uses the subsurface without consent, it is a trespass. Straily v. Lawyer’s Title, No. 12-11-00121-CV (Tex.App. – Tyler 2012, pet den). XXI. WIND EASEMENTS A landowner does not own the wind above his land, but he does own the space through which the wind flows. There are multiple easements involved: Testing easement – this is for the feasibility study of the property Construction easement – Access easement – Transmission easement – Non-obstruction easement – a negative easement to allow for the capture of wind currents Overhang easements – this addresses the overhang of the blades and rotors Noise easement – can be limited to a defined radius and decibel level XXII. IMPLIED RECIPROCAL NEGATIVE EASEMENTS The principle of implied reciprocal negative easements applies when an owner subdivides the property into lots and sells a substantial number of those lots with restrictive covenants designed to further the owner’s general plan or scheme of development. Evans v. Pollock, 796 SW2d 465, 466 (Tex. 1990). If the developer later sells other lots without those restrictions, the earlier purchasers can enforce those restrictions against the later purchasers. This is the so called “scheme of common development” theory. of common development” theory. This easement is created by operation of law. Beware of a developer who tries to sell a lot which modifies the restrictions which he previously placed on the other lots sold.


APPENDIX 1 THE TYPES OF ACCESS EASEMENTS (CONTINUED) Implied easement. This type of easement arises when a tract which was formerly under common ownership and through grant or reservation a “landlocked” parcel is created. In some of the cases, a roadway linking the “landlocked” to a public road was in existence at the time of the severance. Elements for an implied easement are: (1) there must be an apparent use in existence at the time of the grant, i.e. a roadway into or out of the area; (2) the use must be continuous, and (3) the use must be necessary to the enjoyment of the dominant estate. Drye v. Eagle Rock Ranch, Inc., 364 SW2d 196, 207-208 (1962). The elements of an easement by implication are: (1) there at one time existed a unity of ownership of the dominant and servient estates; (2) the use was apparent at the time of the grant severing the two estates; (3) the use of the easement until the time of the grant was continuous, so that the parties must have intended that its use would pass by the grant; (4) the easement was necessary to the fair and enjoyable use of the dominant estate. Bickler v. Bickler, 403 SW2d 354, 357 (1966). Another situation in which an easement is created by implication is when there was no existing road to the landlocked parcel. “It is well settled that where a grantor conveys a tract of land but retains land which is surrounded partly by the land conveyed and the remainder of it is surrounded by the land of strangers there is an implied reservation of a right of way by necessity over the land conveyed where there is no other way out.” Parker v. Bains, 194 SW2d 569, 575 (Tex.Civ.App. - Galveston, 1946 n.r.e.). The rule requiring that an easement be apparent and continuous as a requisite to a grant or reservation thereof by implication does not apply to a way of necessity. Therefore, the roadway need not have been existing at the time of the grant. Barrick v. Gillette, 187 SW2d 683 (Tex.Civ.App. - Eastland, 1945 w.o.m.). Easement by necessity. This is a type of implied easement. The elements of an easement by necessity are: (1) there at one time existed a unity of ownership of the dominant and servient estates; (2) the roadway is a necessity for the enjoyment of the dominant estate; and (3) such necessity existed at the time of the severance of the two estates. Estate of Waggoner v. Gleghorn, 378 SW2d 47, 48 (1964). Koonce v. J. E. Brite Estate, 663 SW2d 451, 452 (Tex. 1984). It is well settled that where there is conveyed a tract of land which is surrounded by the grantor’s land or by his and that of third persons, and to which the grantee can only have access to or egress from or through lands other than that conveyed, the grantee has a right of way by necessity over the remaining lands of the grantor. Baines v. Parker, 182 SW2d 397, 399 (1944). The claimant is not entitled to a way of necessity if he has a right or way over the land of another. Id., 399. Where an owner of a tract sells a part of the tract that has no reasonable means of access other than through the retained tract, an easement of necessity is implied even though the easement is not mentioned in the conveyance. Samuelson v. Alvarado, 847 SW2d 319, 323 (Tex.App. - El


Paso, 1993), citing Hoak v. Ferguson, 255 SW 258, 260 (Tex.Civ.App. - Ft. Worth 1953, n.r.e.). The right to select the location of the easement belongs initially to the owner of the servient estate. If the servient owner fails to do so, then the owner of the dominant estate may locate the easement of necessity with due regard for the convenience of the parties. Id., 323. Where land sold was so situated that purchasers could not reach a public highway except by traveling over remaining lands of vendor or lands of strangers, purchasers had right or way over remaining land of vendor by necessity, which way existed against vendor and successor in ownership, in favor of purchasers, their tenants, or assigns. Stuart v. Larrabee, 14 SW2d 316, 320 (Tex.Civ.App. - Beaumont 1929, writ refused). If a landowner has another way to his property, the landowner cannot claim by implication the right to pass over another’s property. Daniel v. Fox, 917 SW2d 106, 111 (Tex.App. - San Antonio, 1996, no writ). The fact that the alternate route would be inconvenient or expensive does not justify imposing an easement by necessity. Duff v. Matthews, 311 SW2d 637, 640 (1958). Easement by estoppel. Whenever A induces B to change his position to B’s detriment, an estoppel is created. A is estopped from denying B the benefit of what he was led to believe by A’s conduct. This doctrine generally operates as an exception to the statute of frauds which requires that a contract conveying an interest in real estate be in writing. The elements are: (1) a representation communicated to a promisee; (2) the communication is believed; and (3) reliance on the communication. “It has been said that something must be said or done by the owner of the servient estate at the time the owner grants the dominant estate which induced acceptance of the grant. There must be a vendor/vendee relationship. Scott v. Cannon, 959 SW2d 712, 720 (Tex.App. - Austin, 1998). In order to create an easement by estoppel, something must be said or done by the owner of the servient estate at the time of the grant of the dominant estate that induces the acceptance of the grant.” Allen v. Allen, 280 SW3d 366, 381, (Tex.App. – Amarillo 2008, pet. denied). Prescriptive easements. This is an easement established by the rules of adverse possession. As opposed from easements by implied dedication and by estoppel in which one looks to the intent or actions of the alleged easements grantor, an easement by prescription rests on the claimant’s adverse actions under a color of right. To obtain a prescriptive easement, one must use another’s land in a manner that is open, notorious, continuous, exclusive and adverse for a period of ten years or more. Brooks v. Jones, 578 SW 669, 673 (Tex. 1979). Bruce L. Goldston WFG National Title Insurance Company San Antonio, Texas

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Handling Common and Not So Common Easements

Bruce L. Goldston

WFG National Title Insurance Company

San Antonio, Texas

2012 TEXAS LAND TITLE INSTITUTE

THE GROUND RULESWhat Is An Easement?

� A non possessory interest in the land of another.

� An interest a landowner has in the property of another landowner.

� A “general grant of easement” is limited only by “reasonableness”.

�Limited in duration, use and location.

2012 TEXAS LAND TITLE INSTITUTE2012 TEXAS LAND TITLE INSTITUTE2012 TEXAS LAND TITLE INSTITUTE2012 TEXAS LAND TITLE INSTITUTE

What Are the Estates?

� There must be a dominant and a servientestate.

�Relative size does not matter.

�Dominant estate is the one that is benefitted by the easement.

�If the dominant and servient estates ever merge, there is a presumption that the easement has been terminated.


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The Types of Access Easements

� Express easement.

� Implied easement.

� Easement of necessity.

� Easement by estoppel.

� Prescriptive easement.


Which Easement(s) Do We Insure?

� Check with your Underwriter.

� The express easement is insurable “as is”

� All the rest must be established by the final judgment of a court of competent jurisdiction.


Easements by necessity, implication, estoppel, prescription – See APPENDIX.

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Insuring the Express Easement

� Conveys an interest in land.

� Must be in writing to be binding on third parties without notice.

� Filed for record.

� Must otherwise satisfy the rules of conveyancing.

�Good legal description


Who Can Grant the Easement?

� The Owner(s) of the servient estate.

� Cannot be granted by less than all co-owners.

� Prejudicial to the rights of the other co-tenants.

� Subject to an injunction.



RED IS UNDER CO-OWNERSHIP. BOTH A & B MUST JOIN IN GRANTING

AN EASEMENT TO C

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Insuring the Express Easement

Examine the servient tract as you would in a sale.

� Liens? Clouds?

� Taxes for previous and current year?

� Does the easement link the dominant tract to a public road?

� Additional chain charge? R-9.


Appurtenant Easements

� “Runs with the land”

� Conveyance of the dominant estate carries the easement with it.

� “ … his heirs, successor, and assigns …”

� Does not have to be expressly conveyed in subsequent deeds, but do so.


Overburdening An Easement

� Examining an easement which benefits atract which was not the originaldominant tract.

� Does the extending of the easement tothe new tract constitute a use beyondwhat the parties to the original easementintended?


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2


2


2

20 AC

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Negative Easements

� Agreement to not make some use ofproperty that the owner would otherwisebe allowed to make.

� How are they different from restrictivecovenants?



Negative Easement ?


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Easements in Gross

� A personal right or license.

� Not a real property interest.

� Does not run with the land.

� Access by an easement in gross?


Avigation Easements

� The right of aircraft to fly in the airspace.

� “Federal money” granted to cities for noise abatement programs.

� Homeowner grants an avigation easement.

� Federal statute.



AVIGATIONEASEMENT

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Flowage Easements

� Flood easements

� Inundation easements

� Two ways:

�Condemn and take title;

�Obtain a flowage easement and landowner retains title.


DOES IT MAKE A DIFFERENCE?

Flowage Easement


Flowage Easement (2)

� Sometimes indistinguishable from conservation easements.

� Preservation of low lying wetlands.


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Visibility Easements

� View or sightline easements.

� Imposed by developer for public safetypurposes or to preserve a scenic view.



VIEW EASEMENT –SAFETY

Capitol View Corridor

� Texas Government Code, Ch. 3151

� Establishes 30 capitol view

corridors in Austin

� “ … a person may not begin

construction …”

� Any person can file for

an injunction.


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Air Space Easement

� Air space is a real property interest.

� Highway ramps.

� Overhang easements.


Easements on VLB Tracts

� Land is being purchased from VLB under a contract for deed.

� Utility easement / ROR / flowage easements.

� VLB must approve.

� VLB gets the $.


Pipelines and Blanket Easements

� Large tracts.

� Undefined area.

� Where is the pipeline?

� Abandoned?

� Surveyor must locate.


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PIPELINE AND EASEMENT



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Reciprocal Easements

� “All” parcels are dominant and all parcels are servient. Access, parking, utilities.


Solar Access Easements

� Used to insure access to sunlight for a solar panel array.


Construction Easements

� Access and storage during construction.

� Is it defined?

� How is it terminated?


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Subterranean Tunnel Easement

� A landowner owns the surface, the sub surface and the air space.


Wind Easements

� Testing easement – this is for the feasibility study of the property

� Construction easement –

� Access easement –

� Transmission lines easement –

� Wind non-obstruction easement – a negative easement to allow for the capture of wind currents


� Overhang easements – this addresses the overhang of the blades and rotors

� Noise easement – can be limited to a defined radius and decibel level


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Implied Reciprocal Negative Easement

� Scheme of common development.

� Enforce covenants against other landowners in the development.



APPENDIX


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The Implied Easement

� Here, the parties’ actions “imply” the grant of an easement.

� The situation of the existing roadway, followed by the creation of a landlocked parcel.



ROADWAY EXISTS ACROSS A’s TRACT BEFORE SEVERANCE


IS THERE AN IMPLIED EASEMENT FOR B TO USE THE ROAD?

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The Easement by Necessity

� Not an existing roadway at the time of severance of the parcels.

� An easement is necessary to reach a public road.

� In order to have an easement by necessity, the dominant estate owner must not have another way to reach a public road.




DOES B HAVE AN EASEMENT ACROSS A’s LAND?

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17


EASEMENT BY NECESSITY?


NO NECESSITY FOR EASEMENT -BLUE HAS ANOTHER ROUTE

2

The Easement by Estoppel

� Created by the rules of equity.

� A induces B to change his position in reliance on the statement.

� A is estopped to deny B the benefit of what A represented.


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18

The Prescriptive Easement

� Established by adverse possession.

� Texas Supreme Court:

�Open, notorious, continuous, exclusive, and adverse

�10 years or more


Documents

HANDLING COMMON AND NOT SO COMMON EASEMENTS · 2017-04-18 · An easement in gross runs only to the grantee. It is not an easement for the purpose of gaining access to a dominant