Law of the Land

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.

Issues 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 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.”

The four types of implied easements include easements by necessity, prior use easements, easements by prescription and easements by estoppel. Each type of implied easement has a separate and different set of conditions that must be met for the court to grant an easement.

An easement by necessity arises when a grantor either conveys or retains a parcel of land and fails to expressly provide for a means of access. In situations like this, courts have assumed the initial landowner intended to provide access and simply failed to do so. In order to successfully obtain an easement by necessity, the party seeking the easement would have to show (1) prior unity of ownership between the dominant and servient estate; (2) true necessity of access; and (3) the necessity existed at the time of severance.

For instance, if Amy owned 100 acres and offered to sell the back 50 acres, which had no other access, to Brett, the court would likely conclude an easement by necessity is implied if Brett proved all of the necessary factors.

A prior use easement is based, as the name indicates, on prior use. The courts recognized this type of easement once it became apparent that the necessity framework was ill-suited to address improvements such as powerlines or utility pipelines. Again, the party seeking the easement will have to prove a number of stringent conditions including “the use must be necessary to the use of the dominant estate.”

As an example, in a case where a landowner sold one parcel while retaining ownership of another, yet failed to reserve any water lines to service his home, the court held a prior use easement existed.

Unlike an easement by necessity and a prior use easement where a landowner’s consent is assumed, a prescriptive easement only exists where no such permission to use an easement exists.

“Courts tend to disfavor this type of easement, so each element—which generally are very difficult to prove—is carefully scrutinized,” Lashmet said.

To obtain a prescriptive easement, the person claiming the easement must prove he or she has used the easement for at least 10 years and the use was: (1) open and notorious; (2) continuous; (3) exclusive; and (4) adverse.

One case where the elements were satisfied involved a rural road on a landowner’s property where the neighbors used it without permission for more than 40 years. They did not allow anyone else to use the road, which they maintained, and enclosed the road with a fence and a gate at the end.

An easement by estoppel arises when one person acts in reliance on being told that an easement exists. As with other implied easements, the landlocked owner is forced to file a court action, prove the specific elements, and get a judge’s order.

In Cores v. Laborde, a recent Texas case, the courts held an easement by estoppel existed with regard to a road that the prior landowners had used for years without objection. The purchasing landowner was told by the seller that he was able to use the road and in fact, the seller had built new cattle pens on the road. With these facts, the court found the new owner purchased the property in reliance on his ability to use the road.

LANDLOCKED PROPERTY

Contrary to popular coffee shop wisdom, neighboring landowners are not required to allow access to a “landlocked” piece of property.

“As a landowner, you do not have to grant an express easement to anyone to allow them access to their land,” Lashmet said. “It’s a case of buyer beware. Purchasers should ensure they have clear access.”

During purchase transactions, access issues become apparent early on because it is impossible to get title insurance or a bank loan. Of course, some people may choose to pay cash, which circumvents these hurdles initially, but they could resurface if the purchasers ever choose to sell. The looming issues also limit potential buyers.

Access issues with landlocked property often arise with inherited property.

“Many people find themselves in situations where access was provided through a handshake deal, but the people who shook hands on it are long dead—and there is no record of the agreement,” Lashmet said.

Regardless of how they came to own landlocked property, landowners have options.

“Likely, the best thing to do is try to negotiate an express easement with one of the neighbors, even if it means purchasing it,” Lashmet said. “Express easements bring certainty.”

If negotiations fail, the landlocked landowner can begin researching the applicability of the various implied easements. As noted earlier, each type of implied easement has a specific set of facts that must be proven for the easement to be considered by the court. Even if the facts are proven, there is no guarantee that the court will rule in favor of the landlocked owner.

As a final option, landowners may consider a provision in the Texas Transportation Code (Section 251.053) that allows a statutory easement to be granted by a commissioners court. Under this provision the commissioners court can determine that no access exists and issue an order to create a public road to connect the landlocked property to another public road. Note, the commissioners court has the option, but is not required, to take this action even if all elements are satisfied.

While this provision exists, there are many practical hurdles, not the least of which is that the county must cover the cost of road construction as well as damages to any property that the new road crosses. Additionally, there are potentially some constitutional concerns with this approach of which parties seeking this type of access should be aware.

“This option like implied easements carries no guarantee of success despite the time and effort expended,” Lashmet said. “An express easement, when available, is the landowner’s gold standard for access.”

DISCLAIMER

This column is for educational purposes only, does not create an attorney-client relationship, and is not a substitute for competent legal advice by an attorney licensed in Texas or any other state. The information provided is merely provided for informational purposes.