Rights in Land of Another

Question 1

Easements in Gross

Answer 1

Not assignable or transferable unless there is an express assignment provision in the instrument creating the easement

Statutory conservation easements are easements in gross, and they are assignable

Question 2

Creation of Easement by Implication

Answer 2

The level of necessity for an implied easement depends on whether it is an implied grant or an implied reservation

• Implied grant = reasonable necessity
• Implied reservation = strict necessity

Tx only applies the easement by necessity standard to implied roadway easements and applies the implied from existing use standard to less cumbersome implied easements (e.g., power lines)

Question 3

Creating of Easement by Prescription

Answer 3

In Tx, the period of time necessary to establish a prescriptive easement is only 10 years

Question 4

Creation of Easements - Scope

Answer 4

Scope of an express easement is determined by the same rules that govern deeds and other written instruments

If not ambiguous, the court will give effect to the intention of the parties as expressed by, or as is apparent from, the writing

The objective intent of the parties is the controlling factor

Question 5

Creation of Easements - Absence of Location

Answer 5

An easement created by express grant must describe w/ such certainty that a surveyor can go upon the land and locate the easement by description

If the description is inadequate or if there is no description, there can be no easement

However, it has long been held that certain un-located easements, such as where the instrument merely permits the construction of some facility or the laying of line on designated property, are valid

Question 6

Equitable Servitudes

Answer 6

More often than not, these are referred to as restrictive covenants or negative easements in Tx

Question 7

Adverse Possession Requirements

Answer 7

Actual and visible appropriation of real property, commenced and continued under claim of right that is inconsistent w/ and hostile to the claim or another

Possession must be peaceable, which has the same meaning as the element of continuous and uninterrupted possession

Question 8

Running of Statute - Adverse Possession

Answer 8

Filing of suit to recover property terminates the adverse possession. However, if lawsuit is abandoned or otherwise not prosecuted to a j/m, possession can continue, which can ripen into adverse possession

Three-Year Statute = for someone who holds title or color of title; difficult to prove

Five-Year Statute = for someone who:
(i) cultivates, uses, or enjoys the property
(ii) pays applicable taxes
(iii) claims under a duly registered deed
≠ claim based on a forged deed or deed executed under a forged power of attorney

Ten-Year Statute = for someone who cultivates, uses, or enjoys the land; possession limited to 160 acres, including improvements, except:

(i) if the property is enclosed, possession is limited to number of acres actually enclosed
(ii) if possession is held under a duly registered deed or other memorandum of title that fixes the boundaries of the claim, the claim extends to the boundaries specified in the instrument

25-Year Statute = for someone who possesses the property in good faith and under a deed or other instrument purporting to convey the property and which has been recorded in the county deed records where any party of the property is located

• Applies regardless of legal disability
• Possession extends to the property described in the recorded deed or instrument even though the instrument is void

Question 9

Actual and Exclusive Possession

Answer 9

Upon severance of the mineral estate from the surface estate, possession of the SE alone does not constitute adverse possession of the ME

Actual possession of the minerals (e.g., drilling, production) must occur

Question 10

Constructive Possession of Part

Answer 10

Very limited in Tx

Question 11

Open and Notorious Possession

Answer 11

For the element of visible appropriation to be met by allowing livestock to graze on the land, the adverse possessor must show that she constructed a sturdy enclosure demonstrating that the land is intentionally enclosed and that the claimant is asserting a claim that is hostile to the true owner

Question 12

Hostile

Answer 12

A person may establish title by AP after a permissive entry by showing three additional elements:

(1) the former permissive relationship has been repudiated,
(2) the repudiation and adverse claim have been communicated to the person who gave permission, and
(3) AP has continued for the prescribed number of years after that date

Question 13

Payment of Property Taxes

Answer 13

In Tx, payment of property taxes is a requirement for establishment of title by AP under the 5-year SOL

Question 14

Disability for AP

Answer 14

In Tx, the 3-year, 5-year, and 10-year AP statutes do not begin to run when the title holder of record is under certain disabilities either (i) at the time the property vests, or (ii) at the time adverse possession commences

Legal disabilities occurring at other times do not affect the running of statutes

A person is under a disability if she is:
-under the age of 18
-serving in armed forces in time of war
-of unsound mind
≠ prisoners

In Tx, the maximum tolling period cannot extend beyond 25 years

Question 15

Land that Cannot be Adversely Possessed

Answer 15

The SoL for the recovery of land does not prevent the state or its political subdivisions from bringing an action for recovery of land

This is true even if a private record holder has donated or dedicated the property to the county for public use