Access to Property BY LORIE A. WOODWARD
This is the second installment in a six-part series on key laws that Texas landowners need to know. The series is prepared in partnership with Tiffany Dowell Lashmet, Associate Professor and Extension Specialist, Texas A&M AgriLife Extension, who authored Owning Your Piece of Texas: Key Laws Texas Landowners Need to Know. The handbook is available as a free, downloadable PDF file at https://agrilifecdn.tamu.edu/texasaglaw/files/2019/05/ Owning-Your-Piece-of-Texas.pdf. Hard copies may be purchased by contacting the author.
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ssues of access come along with rural land ownership. “In broadest terms, access is a way by which a thing or place may be approached or reached,” said Tiffany Dowell Lashmet, an attorney with expertise in agricultural law who serves as an Associate Professor and Extension Specialist for Texas A&M AgriLife Extension. “When it comes to landownership it means determining who is able to come and go on property—and how they get there.” Under the legal umbrella of property access, easements are the most common issues that landowners encounter. “When people talk about access to property, they generally have easement issues,” Lashmet said. “It creates real problems to own land and not be able to get to it.” EASEMENTS An easement is a means by which a landowner grants another person the right to use the landowner’s property for a specific purpose. For instance, Amy can grant an easement to neighbor Brett to use a road on her ranch allowing Brett to reach his property that does not have public road frontage. “An easement does not convey ownership of the property itself, but instead conveys the right to do what is expressly granted and any rights reasonably necessary to that,” Lashmet said. The land on which the easement is granted is considered the “servient estate,” while the land the easement benefits is called
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the “dominant estate.” In the example above, Amy’s ranch is the servient estate and Brett’s the dominant. EXPRESS EASEMENTS The agreement between Amy and Brett is an example of an express easement because Amy, the servient estate owner, “affirmatively granted” Brett the right to use the road. Express easements are governed by the language in the granting document, rather than the actions of the participants. “Landowners who grant easements should be very careful with the exact wording included in the document granting the easement because it can impact the rights of the servient estate in big and sometimes unexpected ways,” Lashmet said. In one Texas case, the servient estate owners granted an easement deemed a “ranch road” and tried to limit its use when the dominant estate owners built a housing development on their property and allowed residents to use the road. The court held that using the descriptor “ranch road” without more detailed limitations in the easement was not sufficient reason to limit the road’s use. “A written express easement prepared by a qualified attorney is the best option,” Lashmet said. “The good ones clearly spell out the terms, so there are no misunderstandings. Once they’re filed in the deed records, they become public knowledge and can be acted on with confidence.” IMPLIED EASEMENTS An implied easement is the other type of easement. As the name indicates, an implied easement is not created by an express grant, but one implied by law when certain conditions are met. “Implied easements must be adjudicated in court, which means they can be time-consuming and expensive,” Lashmet said. “Plus, the burden of proof rests on the person seeking the easement; it’s not easy to prove the factors, so there are no guarantees that the time and expense will result in the desired outcome.”
