An easement is a legal tool that gives a person or entity access to private property. Texas law recognizes easements as a way to protect landowner’s rights and compensate them for use granted to communities, companies, or others.

Easements are an effective way to resolve property disputes, but the easements themselves can raise complicated questions and disagreements. An experienced Texas easement attorney at Barron, Adler, Clough & Oddo, PLLC can help you effectively negotiate an easement agreement that clearly defines the rights of all those covered and efficiently resolve any disputes that arise down the road.

At Barron, Adler, Clough & Oddo, PLLC, our Texas property easement lawyers focus specifically on legal issues related to landowner’s rights. Our firm has successfully handled these cases for more than four decades. We are committed to helping people and businesses across the state protect their property rights and resolve disputes.

How Texas Easements Work

An easement generally is a right or privilege granted to an individual, entity, or community that allows them to use land that is owned by someone else. In Texas, as in other places across the country, easements are governed largely by state and local laws.

An easement holder has the right to access the property covered by the easement, but only for specific purposes. The easement does not give ownership or full use of the land to the holder.

In neighborhoods and communities, for instance, easements are commonly used for streets and sidewalks. Similarly, utility companies are often granted easements to install and maintain water, gas, sewage, telephone or electric lines.

An easement can be public or private. Public easements grant the rights of land usage to the general public, such as streets and sidewalks. They can be created by an owner who dedicates property for public use or by a government entity through the condemnation process.

Private easements, on the other hand, give the rights to a specific party or parties. They are commonly created through agreements between property owners and those seeking access to the property. For example, a landowner may grant an easement to neighbors that allows them to use a private road to access their property.

The terms of an easement can vary widely depending on the agreement, which typically specifies who can use the property, which part of the property they can use, and the purpose for which they can use it. In some limited situations, an easement may be implied under the law without a written agreement expressly creating the easement.

Types of Easements

Express Easements

Express easements are the most common form of easements in Texas and nationwide. The property owner affirmatively gives others a limited right to access the property for specific purposes.

In express easements, the terms are governed by the language creating the easements. That is often found in a written agreement, but easements can also be granted verbally.

It is crucial for anyone granting or seeking an easement to get the agreement in writing. It is also important to make the terms as clear as possible to avoid later disputes about the scope of an easement. By clearly laying out the terms of the easement in a written document that is recorded in county deeds records, landowners and easement holders can reduce the risk of aggravating, costly, and time-draining fights on the back end. The costs of doing right upfront greatly outweigh the risk of disagreements later.

Implied Easements

Implied easements are not created through an expressed grant of access to property. Instead, these easements are considered implied under the law in certain circumstances.

In other words, a landowner in Texas may be forced to honor an easement on the property in some situations in which the owner has not agreed in the first place to grant the easement.

An easement may be considered implied, for instance, if a landowner sells a portion of his or her property and neglects to specifically reserve an easement to use roads necessary to get on or off the property he or she still owns. Or if the same landowner neglects to create an easement allowing the person to access parts of the sold property as necessary to reach public roads.

A person or entity looking to enforce an implied easement generally will have to go to court to do it. That means asking for a court order acknowledging the easement and then filing the order with local deed records if the court awards it. This can be a complicated process that comes with uncertain results. That is why it is much better practice to get an express easement in writing.

Implied easements come in three different categories: easements of necessity, pre-existing use easements, and prescriptive easements.

Easements of Necessity

These implied easements arise when a property owner sells or keeps a parcel of land but does not expressly provide a means for access to the land. Texas courts, in these situations, typically will find that the original landowner intended to provide the means of access and will grant the easement as implied.

The burden is on the party that wants the easement recognized to prove that it is implied. That means showing that the two parcels of land were at one time owned by the same person or entity, that the access is necessary rather than a matter of convenience, and that the necessity existed at the time that the parcels were severed. A court will grant the easement only if all three of these requirements are met.

Disputes over easements of necessity can arise long after parcels of land are divided by owners who have since died or are difficult to track down. That can make it difficult to get the evidence needed to establish the implied easement. Our Texas easement attorneys have significant experience handling these matters and a track record of successful results for our clients.

Pre-Existing Use Easements

Implied easements will be granted based on prior use in some cases. They are often implemented in cases where necessity cannot be proved, such as easements involving utilities.

The key here is that the party seeking the easement has to prove that the property was already being used for the easement’s purpose in a way that was open and obvious at the time that the land was severed. The person or entity also has to show that the use was continuous, meaning that it was meant to continue when the land was severed.

Prescriptive Easements

Prescriptive easements are different from other types of implied easements because they are used only in situations in which the landowner does not give permission to use the property. As a result, they are significantly more difficult to obtain.

A person or entity seeking a prescriptive easement in Texas must first prove that they have effectively used the easement for at least 10 years. They also have to show that the use was:

  • Open and notorious
  • Continuous
  • Exclusive
  • Adverse

That is a high bar for anyone seeking a prescriptive easement. You have to be able to establish that you were the only one using the easement for a decade or more and that you did not have permission to do it.

At Barron, Adler, Clough & Oddo, PLLC, we have resolved these kinds of matters on favorable terms for the people and businesses that we represent. A Texas property easement lawyer at our firm can help you weigh your options and enforce your rights when it comes to implied easements and related issues.

Nonpossessory Interest in Land

A nonpossessory interest in land in Texas is a legal right to use or restrict the use of another person’s land without owning the land. A person who holds an easement on another’s land generally has a nonpossessory interest in it. That is, the easement holder does not have an ownership interest in the property. The property’s owner continues to have full ownership interest in the land and the right to use it, subject to the terms of the easement.

Why You Need a Texas Easement Attorney

Disagreements over easements can arise in a number of different ways, involving a wide range of property types and interested parties. These disputes can quickly turn messy, time-consuming, and expensive. For those involved, navigating the law can feel overwhelming.

Fortunately, you do not need to go it alone. A Texas property easement lawyer at Barron, Adler, Clough & Oddo, PLLC can help you understand your rights and take action to protect them. A seasoned attorney can also help you resolve disputes or prevent them from occurring in the first place by negotiating easement agreements. A lawyer will also fight tirelessly for you in court in situations where an agreement cannot be reached.

Handling these cases requires a deep understanding of the complex web of laws governing property rights in Texas. Our Texas easement attorneys combine more than 100 years of experience helping property owners navigate the eminent domain process. We have successfully handled thousands of cases representing landowners across the state involving roadways, pipelines, utilities, and more. Our lawyers have fought for clients in state and federal courts of all levels, from special commissioner proceedings to the Texas Supreme Court. Contact us for immediate assistance.

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