An Overview of Texas Easements

Easements are a pervasive element in Texas property law and are generally defined as a right, privilege, or advantage that exists as a distinct interest from ownership rights in real property. Most commonly, an easement allows a person (or the public) to use the land of another in a certain manner.

There are numerous ways to establish an easement in Texas as outlined by the common law.

Easement by Express Grant

This type of easement is created by the express agreement of the parties and adheres to the formalities of real estate instruments in Texas. Express easements must be in writing, properly subscribed by the party to be charged, show the intent to grant with an adequate legal description, be acknowledged (if recorded), and properly delivered. Pick v. Bartel, 659 S.W.2d 636 (Tex. 1983).

Easement by Prescription

An easement by prescription is one that has been obtained and held by a claimant against the wishes of the landowner. The claimant usually confirms the right to the easement via court order and must meet these requirements:

1. Use of the easement must be adverse, open, notorious, and hostile to the interest of the landowner. Vrazel v. Skrabanek, 725 S.W.2d 709 (Tex. 1987).
2. The easement must be used exclusively by the claimant and not open to the public or qualify as a joint use easement. Brooks v. Jones, 578 S.W.2d 669 (Tex. 1974).
3. The easement use must be uninterrupted and continuous for a period of at least 10 years. Davis v. Carriker, 536 S.W.2d 246 (Tex. Civ. App.—Amarillo, 1976).

Easement by Estoppel

If a claimant, in good faith, relies on a property owner’s oral agreement to an easement that is later withdrawn, they may seek an easement by estoppel. The claimant must show that:

1. Promise of easement was communicated to the claimant;
2. They believed the promise;
3. And they can show reliance on the promise to their detriment, such as expending funds that cannot be recovered if the promise is withdrawn. Exxon Corp. v. Schutzmaier, 537 S.W.2d 282 (Tex. Civ. App.—Beaumont, 1976). 

Easement by Implication

An easement by implication is imposed by a court to provide equity. Like an estoppel claim, an easement by implication is not in writing. It usually occurs when an easement has been in continuous use for some time (but was not created by any agreement in writing), and the landowner suddenly cuts off access. The prior use must be apparent and obvious, reasonably continuous, and necessary to enjoy fair use of the claimant’s own property. Persons v. Russell, 625 S.W.2d 387 (Tex. Civ. App.—Tyler, 1981).

Finally, the claimant must show that there was originally a unity of ownership of the two estates immediately prior to the easement being created. Typically, this occurs when one piece of property is divided and sold to two owners. These owners may then have an oral agreement that grants the easement to the other’s landlocked property. Westbrook v. Wright, 477 S.W.2d 663 (Tex. Civ. App.—Houston, 1972).

Easement by Necessity

Easements by Necessity are often confused with easements by implication but are not the same. To create an easement by necessity one must prove:

1. There was a unity of ownership with the alleged dominant and servient estates. 
2. The access is a necessity, not a mere convenience. 
3. The necessity existed at the time of the severance of the estates. Othen v. Rosier, 226 S.W.2d 622 (Tex. 1950).

Being landlocked, by itself, does not create an easement by necessity. The claimant must show conduct between the two estates, as courts have ruled that no one can have an easement by necessity over the land of a stranger. The necessity must also be strict, meaning that it is the only possible access to the other property. Duff vs. Matthews, 311 S.W.2d 637. 

Conclusion

If you have any questions about enforcing or establishing easements, contact an experienced real estate attorney for advice. Easement law in Texas is complex and requires the necessary knowledge and skill in navigating the various types of easements available to landowners.

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